Delayed publication in EU Community Designs

When applying for a European Union design to the EUIPO, a request for delayed publication can be made, that is, when submitting a design application, the applicant can request to postpone the publication of the design for 30 months from the application date/priority date to avoid the design being disclosed after it is actually put on the market, so as to maintain a competitive advantage for the right holder. When the authorization is published, the Community Design Bulletin only publishes relevant information about the design, including: application number, application date, authorization date, authorization number, name and address of the right holder, name and address of the agent, but does not publish other details, such as the representation of the design or the description of the product.

However, third parties may also inspect the entire file if they have obtained the applicant's prior consent or can prove that they have a legitimate interest. In particular, if an interested party submits evidence that the owner of the Community design whose publication has been postponed has taken steps to prepare to exercise his rights over it, then the interested party has a legitimate interest.

As long as the publication of the design is postponed, no registration certificate will be issued. However, the design right holder who has postponed the publication may request a certified or uncertified extract from the patent certificate of grant containing a description of the design or other details identifying its appearance in order to invoke his rights against third parties.

A request for delayed publication must be made at the same time as the design application is filed. Even if a request for delayed publication is received on the same day, the EUIPO will not accept it.

Since the EUIPO can complete the authorization announcement within 2 working days at the fastest, and sometimes even grant the authorization on the same day of submission, if the application accidentally does not include a request for extension, the applicant should withdraw the design application immediately to prevent publication. After the withdrawal, the applicant should preferably contact the examiner on the same day to confirm the withdrawal.

The applicant must pay the deferred publication fee at the same time as the grant fee. During the new application stage, you can choose not to pay the publication fee.

The right holder notifies EUIPO at any time before the expiration of the 27-month period whether the design shall be published as soon as technically possible or at the end of the 30-month deferral period. If the applicant does not make a specific request, the design will be published at the end of the deferral period.