More clarity on “normal use” in EU design law
The Court of Justice of the European Union has offered some clarity on what may be deemed ‘normal use’.
A registered design right protects the appearance of the whole or part of a product and allows its owner to stop others exploiting the design or closely similar designs.
A registered design owner has the option of marking their product with the term “registered” or an abbreviation of that word, together with the number of the registered design, in order to increase the likelihood of them being awarded financial relief if their design is found to be infringed.
From 1 October 2017, an owner of a UK registered design will be able to benefit in the same way by marking their product with a link to a relevant webpage. The webpage should be accessible free of charge and must clearly associate the product with the registered design number.
It should be noted however that marking a product with a link to a home page of a company’s website is unlikely to be sufficient unless on that home page there is a clear association between the product and the relevant registered design number. It is also important to ensure that information contained on the web page is up-to-date and clear so that the public can easily establish which registered designs apply to the product.
Despite the change, it will still be possible for registered design owners to mark their products with the associated registered design numbers if they prefer. It will also remain possible for owners not to mark their products but this could impact on the chances of them being awarded financial relief if infringement of their design has occurred.
The new web marking system should place registered design owners in a stronger position since infringers should find it more difficult to prove that they were unaware that a design was registered. This in turn should increase the likelihood of a registered design owner being awarded damages if the registered design is found to be infringed.
It is also expected that the new web marking system will reduce the costs and burden associated with marking a product and will allow registered design owners to easily and quickly update and publicise information relating to their products. Since a similar system is already in place for patents, this change means that details of patents and designs relating to protected products can be listed on the same web page and accessed via a single link.
If you have any questions about registered designs, patents and product marking, please get in touch with one of our attorneys.