Industrial property: legal protection of designs
This additional opinion covered all of the other questions
raised by the Commission. In particular, a number of articles could be worded
better to avoid problems of interpretation. The Committee also made the
following recommendations: - it was important to check whether the general
requirements set out in the regulation were compatible with Article 25 of the
Agreement on Trade-Related Aspects of Intellectual Property Rights, including
trade in counterfeit goods; - the ‘date’ on which a design was
made available to the public should be more definite and its geographical
scope identified; - since it was difficult to determine the reference date
indicating the duration of protection, it was suggested that the holder of an
unregistered Community design should be required to communicate the date from
which protection was effective; - one article empowered the holder of an
unregistered design to prevent any third party from using an identical design
resulting from ‘copying’. This provision was only acceptable if
the burden of proof was reversed; - registration of designs with deferred
publication was of interest. Consideration should be given to granting all
the rights conferred by registered designs even in the case of registration
of a design with deferred publication; - one provision established
presumption of validity in that a Community design was to be considered new
within the meaning of Article 5 provided the holder submitted evidence of its
individual character. It was practically impossible to satisfy this
requirement as the proposed provisions constituted a reversal of the burden
of proof against the defendant counterclaimant, i.e. the possible
counterfeiter, rather than the right holder; - provision was made for a