Grounds for refusal in EU Community Design

EUIPO's examination of Community designs is limited to two grounds of non-registration, namely

1. The design does not comply with Article 3a of the Convention on International Trade in Goods and Services, namely: "Design" means the overall or partial appearance of a product, in particular its lines, contours, colours, shapes, texture and/or materials and/or the characteristics of its decoration. "Product" means any industrial product or handicraft, including, inter alia, parts, packaging, decoration, graphic symbols and typefaces intended to be assembled into a complex product, but does not include computer programs. Whether the applied product is actually manufactured or used in the manner of an industrial product or handicraft, or whether it can be manufactured or used, will not be examined.

Whether a design discloses the appearance of a "product" in whole or in part will be examined on the design itself, provided that the design clearly indicates the nature of the product, its intended purpose or function, and the product into which the design is intended to be incorporated or applied.

• Blueprints, house plans or other architectural drawings and interior or landscape designs: Blueprints, house plans or other architectural plans and interior or landscape designs (e.g. gardens) are considered "products" for the purpose of applying Article 7(1) of the Trade Description and Coding Rules and will only be accepted if the printed product is marked accordingly as belonging to Class 19-08 of the Locarno Classification. If the product marked in the application is a house blueprint, this will give rise to an objection if the product marked in the application is a house in Class 25-03 of the Locarno Classification. This is because the blueprint does not show what the finished product, such as the house, will look like.
• Colors and color combinations: A single color may be an element of a design, but it does not meet the definition of a design by itself, as it does not constitute the "appearance of the product". A color combination is acceptable if it can be determined from the appearance that it is related to the product, such as a logo or graphic symbol in Class 32 of the Locarno Classification.
• ICONS: Designs for screen displays, icons and other visual elements of computer programs may be registered.
• Pure linguistic elements: Pure words and sequences of letters (written in standard characters, in black and white) do not meet the definition of a design, as they do not constitute the appearance of the product. However, if imaginative characters are used and/or figurative elements are included, the design can be protected both as a logo/graphic symbol in class 32 of the Locarno Classification and as an ornamental representation of a part of any product to which the design is applied.
• Music and sounds: Music and sounds do not constitute the appearance of a product in themselves and therefore do not meet the definition of a design. However, a graphic representation of a musical work in the form of musical notation, if applied for as, for example, other printed matter in class 19-08 of the Locarno Classification or as a graphic symbol in class 32, qualifies as a design.
• Photographs: The photograph itself constitutes the appearance of the product and therefore meets the definition of a design, regardless of what is shown in the photograph. The product may be writing paper, letters and notice cards in Class 19-01, other printed matter in Class 19-08 of the Locarno Classification, or any product to which the design is applied.
• Organisms: Organisms are not "products", that is, they are not industrial products or handicrafts. Designs that disclose the appearance of plants, flowers, fruits, etc. in their natural state are not accepted in principle. Even if the shape in question deviates from the common shape of the corresponding organism, if there is no preliminary evidence that the shape is the result of manual or industrial processing, the design should be rejected. However, if it is obvious from the description of the product that the product does not show a living organism, or if the description of the product clearly states that the product is man-made, it will not be rejected. (Locarno Classification, Class 11-04)
• Teaching materials: Teaching materials such as graphs, charts, maps, etc. may represent products of class 19-07 of the Locarno Classification.
• Concept: A design application will be rejected if the product represented is only one example of many products that the applicant wishes to protect. Exclusive rights cannot be granted for "non-specific" designs that can have many different appearances. This is the case if the subject matter of the application relates to a concept, invention, or method of obtaining a product, etc.

2. Violation of public policy or generally accepted moral principles

It is sufficient to find that the design is contrary to public policy in at least some EU countries. The use of a design is not necessarily illegal and prohibited. However, if the use of the design is illegal under EU or national law, the design should be rejected under Article 9 of the CDR.

• Designs that depict or promote violence or discrimination based on gender, racial or ethnic origin, religion or belief, disability, age or sexual orientation will therefore be rejected.
• A Community design application may be refused on the grounds of moral safeguard if the design is considered sufficiently obscene or offensive from the perspective of a reasonable person with normal sensitivity and tolerance. Bad taste is not a ground for refusal as opposed to being contrary to morality.

If EUIPO issues a rejection decision based on one of the two grounds for non-registration mentioned above, the applicant may voluntarily withdraw or modify the design, or submit a statement within 2 months.

• If the refusal decision concerns the compliance of the design and can be overcome through active amendment, EUIPO will make amendment suggestions in the notification sent to the applicant.
• If the applicant chooses to submit amendments and requests to "retain the characteristics of the design", the amendments will be accepted. The date of receipt of these amendments will be recorded as the application date of the design.
• If the applicant fails to overcome the grounds of unregistrability within the time limit, the EUIPO will reject the application. If these grounds only concern some of the designs in multiple applications, the EUIPO will only reject the parts that concern these designs.