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Council Regulation (EC) No 6/2002Show full title

Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs

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TITLE IU.K.GENERAL PROVISIONS

[F1Article 1U.K.Supplementary unregistered design

1.A design which complies with the conditions contained in this Regulation is referred to as a “supplementary unregistered design”.

2.A design shall be protected as a supplementary unregistered design, if made available to the public in the manner provided for in this Regulation.

3.But a design that is made available to the public before IP completion day is not protected under this Regulation.]

Textual Amendments

F2Article 2U.K.Office

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Textual Amendments

TITLE IIU.K.THE LAW RELATING TO DESIGNS

Section 1U.K.Requirements for protection

Article 3U.K.Definitions

For the purposes of this Regulation:

(a)

‘design’ means the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation;

(b)

‘product’ means any industrial or handicraft item, including inter alia parts intended to be assembled into a complex product, packaging, get-up, graphic symbols and typographic typefaces, but excluding computer programs;

(c)

‘complex product’ means a product which is composed of multiple components which can be replaced permitting disassembly and re-assembly of the product;

(d)

[F3‘qualifying country’ and ‘qualifying territory’ mean a country or territory designated by regulations made under Article 7.]

Textual Amendments

Article 4U.K.Requirements for protection

1.A design shall be protected by a [F4supplementary unregistered] design to the extent that it is new and has individual character.

2.A design applied to or incorporated in a product which constitutes a component part of a complex product shall only be considered to be new and to have individual character:

(a)if the component part, once it has been incorporated into the complex product, remains visible during normal use of the latter; and

(b)to the extent that those visible features of the component part fulfil in themselves the requirements as to novelty and individual character.

3.‘Normal use’ within the meaning of paragraph (2)(a) shall mean use by the end user, excluding maintenance, servicing or repair work.

Textual Amendments

Article 5U.K.Novelty

1.A design shall be considered to be new if no identical design has been made available to the public:

(a)in the case of [F5a supplementary] unregistered F6... design, before the date on which the design for which protection is claimed has first been made available to the public;

F7(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.Designs shall be deemed to be identical if their features differ only in immaterial details.

Textual Amendments

Article 6U.K.Individual character

1.A design shall be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public:

(a)in the case of [F8a supplementary] unregistered F9... design, before the date on which the design for which protection is claimed has first been made available to the public;

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2.In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration.

Textual Amendments

[F11Article 7U.K.Disclosure

1.Subject to paragraph 4, for the purposes of applying Articles 5 and 6, a supplementary unregistered design shall be deemed to have been made available to the public where paragraph 2 or 3 applies.

2.This paragraph applies where before IP completion day, the design was published or exhibited, used in trade or otherwise disclosed except where those events could not have become known in the normal course of business to the circles specialised in the sector operating within the European Union.

3.This paragraph applies where on or after IP completion day but before the date mentioned in Articles 5(1)(a) or 6(1)(a), the design was published or exhibited, used in trade or otherwise disclosed except where those events could not have become known in the normal course of business to the circles specialised in the sector operating within the United Kingdom, a qualifying country or a qualifying territory.

4.A design shall not, however, be deemed to have been made available to the public for the sole reason that it has been disclosed to a third person under explicit or implicit conditions of confidentiality.

5.For the purposes of this Regulation, a “qualifying country” is a country designated as such, and a “qualifying territory” is a territory designated as such, in Regulations made by the Secretary of State.

6.Regulations under paragraph 5 are to be made by statutory instrument and are subject to annulment in pursuance of a resolution of either House.]

Textual Amendments

Article 8U.K.Designs dictated by their technical function and designs of interconnections

1.A [F12supplementary unregistered] design shall not subsist in features of appearance of a product which are solely dictated by its technical function.

2.A [F12supplementary unregistered] design shall not subsist in features of appearance of a product which must necessarily be reproduced in their exact form and dimensions in order to permit the product in which the design is incorporated or to which it is applied to be mechanically connected to or placed in, around or against another product so that either product may perform its function.

3.Notwithstanding paragraph 2, a [F12supplementary unregistered] design shall under the conditions set out in Articles 5 and 6 subsist in a design serving the purpose of allowing the multiple assembly or connection of mutually interchangeable products within a modular system.

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Article 9U.K.Designs contrary to public policy or morality

A [F13supplementary unregistered] design shall not subsist in a design which is contrary to public policy or to accepted principles of morality.

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Section 2U.K.Scope and term of protection

Article 10U.K.Scope of protection

1.The scope of the protection conferred by a [F14supplementary unregistered] design shall include any design which does not produce on the informed user a different overall impression.

2.In assessing the scope of protection, the degree of freedom of the designer in developing his design shall be taken into consideration.

Textual Amendments

Article 11U.K.Commencement and term of protection of the [F15supplementary] unregistered F16... design

1.A design which meets the requirements under Section 1 shall be protected by [F17a supplementary] unregistered F18... design for a period of three years as from the date on which the design was first made available to the public within the [F19United Kingdom, a qualifying country or a qualifying territory].

2.For the purpose of paragraph 1, a design shall be deemed to have been made available to the public within the [F20United Kingdom, a qualifying country or a qualifying territory] if it has been published, exhibited, used in trade or otherwise disclosed in such a way that, in the normal course of business, these events could reasonably have become known to the circles specialised in the sector concerned, operating within the [F20United Kingdom, a qualifying country or a qualifying territory]. The design shall not, however, be deemed to have been made available to the public for the sole reason that it has been disclosed to a third person under explicit or implicit conditions of confidentiality.

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F21Article 12U.K.Commencement and term of protection of the registered Community design

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F22Article 13U.K.Renewal

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Section 3U.K.Right to the [F23supplementary unregistered] design

Article 14U.K.Right to the [F24supplementary unregistered] design

1.The right to the [F24supplementary unregistered] design shall vest in the designer or his successor in title.

2.If two or more persons have jointly developed a design, the right to the [F24supplementary unregistered] design shall vest in them jointly.

3.However, where a design is developed by an employee in the execution of his duties or following the instructions given by his employer, the right to the [F24supplementary unregistered] design shall vest in the employer, unless otherwise agreed F25....

Textual Amendments

Article 15U.K.Claims relating to the entitlement to a [F26supplementary unregistered] design

1.If [F27a supplementary] unregistered F28... design is disclosed or claimed by F29... a person who is not entitled to it under Article 14, the person entitled to it under that provision may, without prejudice to any other remedy which may be open to him, claim to become recognised as the legitimate holder of [F30that] design.

2.Where a person is jointly entitled to a [F31supplementary unregistered] design, that person may, in accordance with paragraph 1, claim to become recognised as joint holder.

3.Legal proceedings under paragraphs 1 or 2 shall be barred three years after F32... the date of disclosure of [F33a supplementary] unregistered F34... design. This provision shall not apply if the person who is not entitled to [F35that] design was acting in bad faith at the time when such design was F36... disclosed or was assigned to him.

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F38Article 16U.K.Effects of a judgement on entitlement to a registered Community design

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F38Article 17U.K.Presumption in favour of the registered holder of the design

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F38Article 18U.K.Right of the designer to be cited

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Section 4U.K.Effects of the [F39supplementary unregistered] design

Article 19U.K.Rights conferred by the [F40supplementary unregistered] design

1.A [F41supplementary unregistered] design shall confer on its holder the exclusive right to use it and to prevent any third party not having his consent from using it. The aforementioned use shall cover, in particular, the making, offering, putting on the market, importing, exporting or using of a product in which the design is incorporated or to which it is applied, or stocking such a product for those purposes.

2.[F42A supplementary] unregistered F43... design shall, however, confer on its holder the right to prevent the acts referred to in paragraph 1 only if the contested use results from copying the protected design.

The contested use shall not be deemed to result from copying the protected design if it results from an independent work of creation by a designer who may be reasonably thought not to be familiar with the design made available to the public by the holder.

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Textual Amendments

Article 20U.K.Limitation of the rights conferred by a [F45supplementary unregistered] design

1.The rights conferred by a [F46supplementary unregistered] design shall not be exercised in respect of:

(a)acts done privately and for non-commercial purposes;

(b)acts done for experimental purposes;

(c)acts of reproduction for the purpose of making citations or of teaching, provided that such acts are compatible with fair trade practice and do not unduly prejudice the normal exploitation of the design, and that mention is made of the source.

2.In addition, the rights conferred by a [F47supplementary unregistered] design shall not be exercised in respect of:

(a)the equipment on ships and aircraft registered in a third country when these temporarily enter the territory of the [F48United Kingdom];

(b)the importation in the [F49United Kingdom] of spare parts and accessories for the purpose of repairing such craft;

(c)the execution of repairs on such craft.

Textual Amendments

Article 21U.K.Exhaustion of rights

The rights conferred by a [F50supplementary unregistered] design shall not extend to acts relating to a product in which a design included within the scope of protection of the [F50supplementary unregistered] design is incorporated or to which it is applied, when the product has been put on the market in the [F51United Kingdom or the European Economic Area] by the holder of the [F50supplementary unregistered] design or with his consent.

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F52Article 22U.K.Rights of prior use in respect of a registered Community design

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F53Article 23U.K.Government use

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Section 5U.K.Invalidity

Article 24U.K.Declaration of invalidity

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2.A [F55supplementary unregistered] design may be declared invalid even after [F56it] has lapsed F57....

3.An unregistered [F58supplementary unregistered] design shall be declared invalid by a F59... design court on application to such a court or on the basis of a counterclaim in infringement proceedings.

Textual Amendments

Article 25U.K.Grounds for invalidity

1.A [F60supplementary unregistered] design may be declared invalid only in the following cases:

(a)if the design does not correspond to the definition under Article 3(a);

(b)if it does not fulfil the requirements of Articles 4 to 9;

(c)if, by virtue of a court decision, the right holder is not entitled to the F61... design under Article 14;

F62(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)if a distinctive sign is used in a subsequent design, and F63... the law F64... governing that sign confers on the right holder of the sign the right to prohibit such use;

(f)if the design constitutes an unauthorised use of a work protected under F65... copyright law F66...;

(g)if the design constitutes an improper use of any of the items listed in Article 6ter of the ‘Paris Convention’ for the Protection of Industrial Property hereafter referred to as the ‘Paris Convention’, or of badges, emblems and escutcheons other than those covered by the said Article 6ter and which are of particular public interest in [F67the United Kingdom, a qualifying country or a qualifying territory].

2.The ground provided for in paragraph (1)(c) may be invoked solely by the person who is entitled to the [F68supplementary unregistered] design under Article 14.

3.The grounds provided for in paragraph (1) F69..., (e) and (f) may be invoked solely by F70... holder of the earlier right.

4.The ground provided for in paragraph (1)(g) may be invoked solely by the person or entity concerned by the use.

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F726.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Article 26U.K.Consequences of invalidity

1.A [F73supplementary unregistered] design shall be deemed not to have had, as from the outset, the effects specified in this Regulation, to the extent that it has been declared invalid.

2.Subject to F74... claims for compensation for damage caused by negligence or lack of good faith on the part of the holder of the [F75supplementary unregistered] design, or to unjust enrichment, the retroactive effect of invalidity of the [F75supplementary unregistered] design shall not affect:

(a)any decision on infringement which has acquired the authority of a final decision and been enforced prior to the invalidity decision;

(b)any contract concluded prior to the invalidity decision, in so far as it has been performed before the decision; however, repayment, to an extent justified by the circumstances, of sums paid under the relevant contract may be claimed on grounds of equity.

Textual Amendments

TITLE IIIU.K. [F76SUPPLEMENTARY UNREGISTERED] DESIGNS AS OBJECTS OF PROPERTY

Article 27U.K.[F77Property right]

 [F78A supplementary unregistered design is personal property (in Scotland, incorporeal moveable property) which subsists in accordance with this Regulation.]

Textual Amendments

F79Article 28U.K.Transfer of the registered Community design

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F79Article 29U.K.Rights in rem on a registered Community design

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F79Article 30U.K.Levy of execution

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F79Article 31U.K.Insolvency proceedings

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Article 32U.K.Licensing

1.A [F80supplementary unregistered] design may be licensed F81.... A licence may be exclusive or non-exclusive.

2.Without prejudice to any legal proceedings based on the law of contract, the holder may invoke the rights conferred by the [F82supplementary unregistered] design against a licensee who contravenes any provision in his licensing contract with regard to its duration, the form in which the design may be used, the range of products for which the licence is granted and the quality of products manufactured by the licensee.

3.Without prejudice to the provisions of the licensing contract, the licensee may bring proceedings for infringement of a [F82supplementary unregistered] design only if the right holder consents thereto. However, the holder of an exclusive licence may bring such proceedings if the right holder in the [F82supplementary unregistered] design, having been given notice to do so, does not himself bring infringement proceedings within an appropriate period.

4.A licensee shall, for the purpose of obtaining compensation for damage suffered by him, be entitled to intervene in an infringement action brought by the right holder in a [F82supplementary unregistered] design.

F835.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F84Article 33U.K.Effects vis-à-vis third parties

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F84Article 34U.K.The application for a registered Community design as an object of property

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Textual Amendments

TITLE IVU.K.APPLICATION FOR A REGISTERED COMMUNITY DESIGN

Section 1U.K.Filing of applications and the conditions which govern them

F84Article 35U.K.Filing and forwarding of applications

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F84Article 36U.K.Conditions with which applications must comply

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F84Article 37U.K.Multiple applications

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F84Article 38U.K.Date of filing

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F84Article 39U.K.Equivalence of Community filing with national filing

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F84Article 40U.K.Classification

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Section 2U.K.Priority

F84Article 41U.K.Right of priority

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F84Article 42U.K.Claiming priority

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F84Article 43U.K.Effect of priority right

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F84Article 44U.K.Exhibition priority

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TITLE VU.K.REGISTRATION PROCEDURE

F84Article 45U.K.Examination as to formal requirements for filing

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F84Article 46U.K.Remediable deficiencies

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F84Article 47U.K.Grounds for non-registrability

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F84Article 48U.K.Registration

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F84Article 49U.K.Publication

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F84Article 50U.K.Deferment of publication

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TITLE VIU.K.SURRENDER AND INVALIDITY OF THE REGISTERED COMMUNITY DESIGN

F84Article 51U.K.Surrender

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F84Article 52U.K.Application for a declaration of invalidity

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F84Article 53U.K.Examination of the application

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F84Article 54U.K.Participation in the proceedings of the alleged infringer

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TITLE VIIU.K.APPEALS

F84Article 55U.K.Decisions subject to appeal

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F84Article 56U.K.Persons entitled to appeal and to be parties to appeal proceedings

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F84Article 57U.K.Time limit and form of appeal

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F84Article 58U.K.Interlocutory revision

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F84Article 59U.K.Examination of appeals

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F84Article 60U.K.Decisions in respect of appeals

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F84Article 61U.K.Actions before the Court of Justice

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TITLE VIIIU.K.PROCEDURE BEFORE THE OFFICE

Section 1U.K.General provisions

F84Article 62U.K.Statement of reasons on which decisions are based

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F84Article 63U.K.Examination of the facts by the Office of its own motion

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F84Article 64U.K.Oral proceedings

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F84Article 65U.K.Taking of evidence

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F84Article 66U.K.Notification

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F84Article 67U.K.Restitutio in integrum

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F84Article 68U.K.Reference to general principles

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F84Article 69U.K.Termination of financial obligations

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Section 2U.K.Costs

F84Article 70U.K.Apportionment of costs

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F84Article 71U.K.Enforcement of decisions fixing the amount of costs

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Section 3U.K.Informing the public and the official authorities of the Member States

F84Article 72U.K.Register of Community designs

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F84Article 73U.K.Periodical publications

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F84Article 74U.K.Inspection of files

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F84Article 75U.K.Administrative cooperation

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F84Article 76U.K.Exchange of publications

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Section 4U.K.Representation

F84Article 77U.K.General principles of representation

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F84Article 78U.K.Professional representation

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TITLE IXU.K.JURISDICTION AND PROCEDURE IN LEGAL ACTIONS RELATING TO [F85SUPPLEMENTARY UNREGISTERED] DESIGNS

Section 1U.K.Jurisdiction and enforcement

F86Article 79U.K.Application of the Convention on Jurisdiction and Enforcement

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Section 2U.K.Disputes concerning the infringement and validity of [F87supplementary unregistered] designs

F88Article 80U.K.Community design courts

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[F89Article 81U.K.The “design court” – Jurisdiction over infringement and validity

1.In this Regulation, “design court” means—

(a)in England and Wales, the High Court;

(b)in Scotland, the sheriff court and the Court of Session; and

(c)in Northern Ireland, the county court and the High Court.

2.The design court has exclusive jurisdiction—

(a)for infringement actions and actions in respect of threatened infringement of supplementary unregistered designs;

(b)for actions for declaration of non-infringement of supplementary unregistered designs;

(c)for actions for a declaration of invalidity of a supplementary unregistered design;

(d)for counterclaims for a declaration of invalidity of a supplementary unregistered design raised in connection with actions under (a).]

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F90Article 82U.K.International jurisdiction

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F91Article 83U.K.Extent of jurisdiction on infringement

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Article 84U.K.Action or counterclaim for a declaration of invalidity of a [F92supplementary unregistered] design

1.An action or a counterclaim for a declaration of invalidity of a [F93supplementary unregistered] design may only be based on the grounds for invalidity mentioned in Article 25.

2.In the cases referred to in Article 25(2), (3), [F94and] (4) F95... the action or the counterclaim may be brought solely by the person entitled under those provisions.

3.If the counterclaim is brought in a legal action to which the right holder of the [F96supplementary unregistered] design is not already a party, he shall be informed thereof and may be joined as a party to the action in accordance with the [F97laws applying to the design courts].

4.The validity of a [F98supplementary unregistered] design may not be put in issue in an action for a declaration of non-infringement.

Textual Amendments

Article 85U.K.Presumption of validity — defence as to the merits

F991.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.In proceedings in respect of an infringement action or an action for threatened infringement of [F100a supplementary] unregistered F101... design, the F101... design court shall treat the [F102supplementary unregistered] design as valid if the right holder produces proof that the conditions laid down in Article 11 have been met and indicates what constitutes the individual character of his [F102supplementary unregistered] design. However, the defendant may contest its validity by way of a plea or with a counterclaim for a declaration of invalidity.

Textual Amendments

Article 86U.K.Judgements of invalidity

1.Where in a proceeding before a F103... design court the [F104supplementary unregistered] design has been put in issue by way of a counterclaim for a declaration of invalidity:

(a)if any of the grounds mentioned in Article 25 are found to prejudice the maintenance of [F105that] design, the court shall declare [F105that] design invalid;

(b)if none of the grounds mentioned in Article 25 is found to prejudice the maintenance of [F106that] design, the court shall reject the counterclaim.

F1072.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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F1074.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1075.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F108Article 87U.K.Effects of the judgement on invalidity

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Textual Amendments

F109Article 88U.K.Applicable law

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Textual Amendments

Article 89U.K.Sanctions in actions for infringement

1.Where in an action for infringement or for threatened infringement a F110... design court finds that the defendant has infringed or threatened to infringe a [F111supplementary unregistered] design, it shall, unless there are special reasons for not doing so, order the following measures:

(a)an order prohibiting the defendant from proceeding with the acts which have infringed or would infringe [F112that] design;

(b)an order to seize the infringing products;

(c)an order to seize materials and implements predominantly used in order to manufacture the infringing goods, if their owner knew the effect for which such use was intended or if such effect would have been obvious in the circumstances;

(d)any order imposing other sanctions appropriate under the circumstances which are provided by F113... law.

F1142.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Article 90U.K.Provisional measures, including protective measures

1.Application may be made to the courts F115..., including F116... design courts, for such provisional measures, including protective measures, in respect of a [F117supplementary unregistered] design as may be available F118....

2.In proceedings relating to provisional measures, including protective measures, a plea otherwise than by way of counterclaim relating to the invalidity of a [F119supplementary unregistered] design submitted by the defendant shall be admissible. Article 85(2) shall, however, apply mutatis mutandis.

3.A F120... design court F121... shall have jurisdiction to grant provisional measures, including protective measures F122....

Textual Amendments

F123Article 91U.K.Specific rules on related actions

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Textual Amendments

F124Article 92U.K.Jurisdiction of Community design courts of second instance — further appeal

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Textual Amendments

Textual Amendments

Section 3U.K.Other disputes concerning [F125supplementary unregistered] designs

F126Article 93U.K.Supplementary provisions on the jurisdiction of national courts other than Community design courts

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Textual Amendments

Article 94U.K.Obligation of the [F127design] court

A [F127design] court which is dealing with an action relating to a [F128supplementary unregistered] design other than the actions referred to in Article 81 shall treat the design as valid. Articles 85(2) and 90(2) shall, however, apply mutatis mutandis.

Textual Amendments

Textual Amendments

Textual Amendments

F129TITLE XU.K.EFFECTS ON THE LAWS OF THE MEMBER STATES

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Textual Amendments

F130TITLE XIU.K.SUPPLEMENTARY PROVISIONS CONCERNING THE OFFICE

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Textual Amendments

F131TITLE XIaU.K.INTERNATIONAL REGISTRATION OF DESIGNS

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TITLE XIIU.K.FINAL PROVISIONS

F132Article 107U.K.Implementing regulation

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Textual Amendments

F132Article 108U.K.Rules of procedure of the Boards of Appeal

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Textual Amendments

F132Article 109U.K.Committee

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Textual Amendments

Article 110U.K.Transitional provision

1.F133... Protection as a [F134supplementary unregistered] design shall not exist for a design which constitutes a component part of a complex product used within the meaning of Article 19(1) for the purpose of the repair of that complex product so as to restore its original appearance.

F1352.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F136Article 110aU.K. Provisions relating to the enlargement of the Community

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Textual Amendments

Article 111U.K.Entry into force

1.This Regulation shall enter into force on the 60th day following its publication in the Official Journal of the European Communities.

F1372.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1383.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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F139...

Textual Amendments

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