Registered Industrial Designs/ Design
Registered industrial designs protect the special outward appearance (the “design”) of a product or a part thereof. There are two simultaneous systems, (a) the national design law system, (b) the Community design law system, which protects also a design, which is not registered, and (c) the International design law system, which on the basis of the Hague system of designs, gives one the possibility to gain protection in a number of contracting states.
The registered industrial design is a property right granted by the government for the outward appearance of a product. It is granted without substantive official examinations through registration with the Austrian Patent Office (national design) or with the European Union Intellectual Property Office (Trade Marks and Designs) (EuIPO). The non-registered Community design also arises without application, but only offers more restricted protection.
A registered industrial design must be new, i.e. it cannot have been made accessible to the public before the application/priority date in an identical form – there is however a grace period in certain circumstances. Further, the registered industrial design must have an individual character, i.e. the overall impression must differentiate itself from that design which is already known.
The protection period of a registered Austrian design as well as a registered Community design is 5 years starting with the date of application. This period can be extended through timely payment of a fee four times by five years for a total period of 25 years.
Austrian registered designs are for the most part regulated in the Austrian Design Protection Law and the Community designs in the Community Regulation on Registered Designs.
The Design Protection Law allows the holder to prohibit others from using his design. This includes in particular the offering, the marketing, the importing, exporting or use of products, in which the design is used, or the possession of products in which the design is used for these purposes.
In case of breach, the holder of rights may demand, in particular, the cessation of the infringing use, the removal, reasonable compensation regardless of negligence or fault or damages regardless of negligence or fault, each including financial statements, publication of the judgement and information about the origin and distribution channel. The cessation, but also the preserving of evidence (“house search under civil law”) or the ability to pay (“freezing of assets”) can be enforced through a preliminary injunction. An intentional design infringement is also a criminal offence.