Innovation and Rights - Developing Biomedical Devices: Design, Innovation and Protection - page 37

• it is in conlict with a previous registration;
• if the use constitutes infringement of a mark or an intellectual work protected
by copyright;
• it represents lags, signs or emblems of state, oficial signs or control of inter-
governmental organizations.
• it is dictated by technical function.
3.2.8.2 The Protection of Community Designs
In Europe a design can be protected at a national level, by filing the design with a
national office in accordance with the specific laws and procedures. 20 But, it can
be also protected at a Community level, by virtue of a Community design.
Protection allows the applicant to prevent others from using its design without its
prior consent, thus encouraging investments in the development of new products.
The most important European directives for the protection of Design are:
• the Directive 98/71/EC of the European Parliament and of the Council of 13
October 1998 on the legal protection of designs.
• the Council Regulation (EC) no. 6/2002 of 12 December 2001 on Community
Designs.
Through these laws member States of the EU are encouraged to support the
legal protection of designs, to remove the heterogeneity of former national leg-
islations and to clear juridical uncertainties. This last issue is based on the fun-
damental principle that the protection of designs confers exclusive rights on the
shape of a single product, of a complex product or of a particular component, pro-
vided that the design is new and has an individual character (Article 1 and 3 of the
Directive). The notion of ornament is overcome and any reference to aesthetical
features is removed, so that even functional or ergonomic industrial designs may
obtain legal protection.
The EC Regulation no. 6/2002 also establishes a new and peculiar instrument
for the legal protection for designs, known as Community design, that is a single
title with validity throughout the European Union. Meant to coexist with national
designs, Community design shares the same basic rules of legal protection with
them, so as to guarantee unity of law enforcement regardless of the chosen method
or instrument of protection.
Community designs may be either registered or unregistered, but both of
them must comply with the two fundamental requirements (shared with national
designs) of novelty and individual character.
The procedure to register a Community design is the same throughout the terri-
tory of the EU and is available since 1 April 2003; it requires the filing of the spe-
cial application with the Office for Harmonization in the Internal market (OHIM),
20 For national discipline, reference is made to the relevant paragraph in Sect. 3.7 .