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Earlier this week, we were introduced to a new concept in intellectual property law: the European 'Community Design'. The Community Design is a sort of trademark on design, and sits halfway between a trademark and a patent. I decided to investigate what, exactly, the laws and regulations around Community Designs are, and what I found was shocking. Think the USPTO is bad? Wait until you learn about the Community Design.
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Earlier this week, we learned that Apple managed to get a preliminary injunction against Samsung's Galaxy Tab 10.1, barring it from being sold in the entire European Union - except for The Netherlands. The legal construct on which this injunction hinges was not a patent or trademark - it was something else entirely. It's called a Community Design, was instated in 2002 and 2003, and, as I have learned, is far, far worse than anything the United States Patent and Trademark Office has ever come up with.
The Community Design was instated as part of Council Regulation No 6/2002. A Community Design is basically a trademark on the design of a product, whether it be software, hardware, or packaging. It is filed at the Office for Harmonization in the Internal Market (OHIM), and once granted, is valid in the entire European Union. Initially it is valid for a period of five years, but it can be extended five times to reach a total of 25 years. Every member state has several Community Design courts, which are regular courts allowed to take on matters relating Community Designs. So far, nothing special.
However, there are several reasons why the Community Design - as it stands today - is basically a tool which companies can use to receive free preliminary injunctions. The way that the Community Design is set up favours large companies heavily, allowing them to use it as a club to ban each other's products from entering the European Union.
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