Are your designs protected without the need for registration? Only partly…
Spanish Industrial Designs Act:
The art. 45 LDI determines the content of the industrial design law registered in the Spanish Patent and Trademark Office (OEPM) in its double aspect, positive and negative or ius prohibendi: “The registration of the design confer to its holder the exclusive right to Use it and prohibit its use by third parties without their consent. For this purpose, the use shall mean the manufacture, supply, marketing, import and export or use of a product incorporating the design, as well as the storage of such product for any of the aforementioned purposes. ”
The art. 47 LDI, covering not only identical designs but also the design that is not “singular” with respect to that one, according to its literal tenor: “1. The protection conferred by the registered design will extend to any design that does not produce in the informed user A different general impression. ”
The meaning of the singular character for the protection of the design is defined in the same sense in the art. 7 LDI: “A design is considered to have a singular character when the general impression it produces in the informed user differs from the general impression Produced in such user by any other design that has been accessible to the public prior to the filing date of the application for registration, if priority is claimed before the priority date. ”
The Community design regulation also shows that the right to the community drawing belongs to its author or successor. The regulation provides for two types of protection for drawings and models directly applicable in each Member State:
· Without any formality, such as ‘ unregistered community design ‘;
· As a ‘ registered community design ‘, if it has been registered in the Ohim.
The protection conferred on an unregistered community design is characterized as short-term: the design shall be protected for a period of three years from the date on which it was first made public within the EU (setting in view NTA of the product through marketing or pre-publishing actions.
The registered community design, for its part, will be protected for a minimum of five years and a maximum of 25.
The difference in the degree of protection is that a registered design will be protected simultaneously against the systematic copy and the independent development of a similar drawing or model, while an unregistered design will be protected Only against the systematic copy.
A registered design will therefore benefit from greater and more formal legal certainty.