office for harmonization in the internal market (trade marks and designs) neutral background...
TRANSCRIPT
Office for Harmonization in the Internal Market (Trade Marks and Designs)
Neutral BackgroundNeutral Background
Dimitrios Andrianopoulos, OHIM
Alicante, 20.11.2012
Office for Harmonization in the Internal Market (Trade Marks and Designs)
Article 4(1)(e) CDIR: “The design shall be reproduced on a neutral background…”
Article 10(1)(c) CDIR: “… a filing date cannot be granted if the application does not contain a representation of the design pursuant to article 4(1)(e)…”
Office for Harmonization in the Internal Market (Trade Marks and Designs)
What is neutral background?
The background in a view is considered neutral as long as the design shown in this view is clearly distinguishable from its environment without interference of any other object, accessory or decoration, whose inclusion in the representation could cast doubt on the protection sought. (Decision of 25 April 2012, R 2230/2011‑3 – Webcams, para. 11-12).
In other words, the requirement of a neutral background neither demands a ‘neutral’ colour nor an ‘empty’ background. It is instead decisive that the design stands out so clearly from the background that it remains identifiable.(Decision of 25 January 2012, R 284/2011‑3 – Tool chest, para. 13).
Office for Harmonization in the Internal Market (Trade Marks and Designs)
Neutral background
Office for Harmonization in the Internal Market (Trade Marks and Designs)
RCD1792623 INDP: “Balustrades”
Neutral background
Office for Harmonization in the Internal Market (Trade Marks and Designs)
RCD 2067900-0001INDP: “Itinerant vendors’ carts”
Neutral background
Office for Harmonization in the Internal Market (Trade Marks and Designs)
RCD 2068692-0002INDP: “Pavilions”
Neutral background
Office for Harmonization in the Internal Market (Trade Marks and Designs)
How to remedy
When the views of the design are reproduced on a not neutral background the applicant is given the possibility to: •replace the views with completely new ones reproduced on neutral background•modify the original views in such a way that the design will be isolated from its background (remove additional elements, use disclaimers)•withdraw the “not neutral” views, maintaining in the representation only the “neutral” views
Filing date: the date when the deficiency is remedied (Article 10(2)CDIR)
If the applicant fails to remedy the deficiency: •Design is refused – Final status: “design not to be dealt as a Community Design”•Fees are refunded
Office for Harmonization in the Internal Market (Trade Marks and Designs)
RCD 2038216INDP: Housings for air filters, for engines
Office for Harmonization in the Internal Market (Trade Marks and Designs)
RCD 2038216INDP: Housings for air filters, for engines
Office for Harmonization in the Internal Market (Trade Marks and Designs)
RCD 1721630INDP: “Shelters for cars”
Office for Harmonization in the Internal Market (Trade Marks and Designs)
RCD 2015875INDP: “Anti-theft mirrors”
Office for Harmonization in the Internal Market (Trade Marks and Designs)
QUESTIONS:
1.Are additional elements, which do not form part of the design, allowed in the representation of the design for illustrative purposes (show of use etc..) ?
2.When the representation of the design is not reproduced on a neutral background the deficiency can be remedied by:
(a) replacing the deficient views with new ones ?(b) amending the original views (remove background or use disclaimers) ?(c) withdrawing the deficient views ?
3.Do the above ways of remedying the deficiency of the not neutral background affect the filing date ?
Office for Harmonization in the Internal Market (Trade Marks and Designs)
THANK YOU.