On 23 March 2019 the European Union Intellectual Property Office has presented the first version for the Common Practice for assessing disclosure of designs on the Internet (CP10 Project).
The CP10 was launched in 2017 with the objective to bring clarity and consistency regarding the formats for proving disclosure of designs on the Internet having in mind that the disclosure of designs is increasingly made on the Internet and new questions are arising as to the probative value of online disclosures.
Why is it relevant
The CP10 document is intended as a reference for the Industrial Property Offices of Member States and other relevant authorities, for assessing disclosure of designs on the Internet.
A design is only protected by European Union law to the extent that it is new and has individual character. The assessment of novelty and individual character should be made at the moment when the design has been made available to the public. Consequently it is of utmost importance to determine when the design was publicly disclosed.
Disclosure on the Internet
A design is considered to be made available to the public when it has been published, exhibited, used in trade or otherwise disclosed, unless the circles specialised in the sector concerned operating within the European Union could not reasonably have become aware of such event of disclosure.
The CP10 delivers a set of principles on the criteria for assessing disclosure of designs on the Internet and provides recommendations on the following aspects:
- Sources of disclosure on the Internet and aspects to take into account when presenting evidence provided from such sources;
- Types of evidence for presenting information obtained from the Internet;
- Different means for establishing the relevant date of disclosure;
- The availability of the information on disclosure to the public.
The use of a design in electronic trade (e.g. offering a product for sale, displaying a product in an online catalogue) or publishing a design for the purposes of registration or otherwise demonstrates clear examples of events of disclosure. Other sources to consider are social media often used by designers and businesses to share their work and to present new products.
It should be also accepted that designs can be disclosed through apps (e.g. online retail sales, online auctions, social networking, instant messaging, etc.), in e-mails (if they are not considered “private correspondence” and are aimed at commercially promote products) or by file sharing means (namely P2P and file hosting).
Dates and evidence
The CP10 provides a non-exhaustive list of tools which can be used to determine the date of disclosure when the design has been made available on the Internet. Furthermore the CP10 makes recommendations as to the means for presenting the evidence obtained from the Internet in order to establish the event of disclosure.