WHEN IS A DESIGN NOT A DESIGN?

The IPKat has come across this charming Practice Notice from OHIM defining just what can and cannot be protected as a Community design. In most instances, the guiding principle is whether the type of feature in question constitutes the appearance of a product, though in some cases it is whether the feature constitutes a finished product or a indeed whether it will be seen as a product at all. The features discussed in the Practice Notice are:

*colour per se – not a design (though colour can be an element of a design)
*fragrances – not a design because not part of the appearance of a product
*mere words in plain black script – not a design
*words in fancy script/combined with a figurative element – can be a design
*music and sounds – not a design
*musical notation – can be a design if applied for for e.g. other printed matter
*living plants – not a design because living (as opposed to artificial plants) aren’t seen as products
*blueprints/architectural plans/interior or landscape designs – not a design for the building/landscape etc. in which the design is intended to be incorporated because CDs must consist of finished products but plans can be designs for themselves
* photographs can be a design.

Colour per se – not capable of being protected as a CD

The IPKat says that it’s interesting that what’s hard to protect as a CTM is also hard to protect as a Community design. Merpel says that she highly recommends the pictures of accepted and rejected CD applicants in the Practice Note.

Good design here and here