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How
is a registered design infringed?
A registered design is infringed by any person who is found to be
making, offering, putting on the market, importing, exporting or
using a product in which the design is incorporated or to which it
is applied without the owner’s consent.
Which acts are
excluded from infringement of a registered design?
A registered design is not infringed by non commercial private acts,
acts done for experimental purpose or acts of reproduction for
teaching purposes or for making citations compatible with fair trade
practices. Once the product has been put on the market in the
European Economic Area by the registered proprietor or with his
consent, the right is exhausted as clearly the owner can not prevent
someone he has sold the product to from selling it on.
It is not an
infringement of a registered design for a spare part to use a spare
part to repair a complex product to restore its original appearance.
What remedies
are available to the registered proprietor?
Relief including
damages, injunctions and account of profits are available to the
owner for any infringement of a Registered Design.
In proceedings for
the infringement of the right in a registered design damages shall
not be awarded, and no order shall be made for an account of
profits, against a defendant who proves that at the date of the
infringement he was not aware, and had no reasonable ground for
supposing, that the design was registered.
In
other words you will not be able to obtain any financial remedy from
an infringer without the Registered Design Number on the Design or
prominently on its packaging.
Can a
design be published before filing and still obtain valid
registration?
A design is considered to be made available to the public if it has
been published, exhibited, used in trade or otherwise disclosed
unless:
(a) it could not
reasonably have become known to sector specialists carrying on their
normal course of business in the European Economic Area;
(b) it was made to a person other than the designer under conditions
of confidentiality;
(c) it was made by the designer during the period of 12 months
before the filing date and this period is known as the grace
period;
(d) it was made by a person other than the designer during the
period of 12 months before the filing date in consequence of
information provided or other action taken by the designer; or
(e) it was made during the period of 12 months before the filing
date as a consequence of an abuse in relation to the designer.
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