Finally Back to Trips-Compliance? EU Design Law and the Criterion of Publication 'Within EU Territory' Journal of Intellectual Property Law & Practice 18, 1 (2023), 11 - 17.
To enjoy protection under the title of unregistered Community design, novel designs must have been published ‘within the territory’ of the European Union (EU). A corresponding provision—referring to UK territory—has been inserted into the UK legislation on supplementary unregistered design.
Both provisions are arguably incompatible with international obligations, as they regularly imply a de facto discrimination against foreigners.
In its proposal for amendment of the Community Design Regulation (CDR) published on 28 November 2022, the EU Commission has now taken a step back from its former position by proposing the deletion of the relevant sentence in Art. 110a(5) CDR. Nevertheless, as long as the wording of the law remains ambiguous, uncertainties will linger about its effect. To avoid undesirable consequences, the solution adopted should be expressed as clearly as possible, with the UK hopefully following the same approach.
