Do new designs need to be shown on the EU market before being shown elsewhere in the world in order to benefit from community unregistered design protection?
This is an important question, not least in the context of Brexit but also in the context of London Fashion Week. If designers are required to exhibit their designs on the EU market before doing so elsewhere, 'third countries' (such as the UK will be and the USA etc. already are) will be much less favourable places to do so.
The UK's Intellectual Property Enterprise Court has been hearing a case concerning the popular "squeezamals" toys, the designs of which were publicised in Hong Kong in 2017, three months before being presented in the EU. The defendant (which, incidentally, was sued by Trunki in relation to its ride-on suitcase) produces a competing product and argues that the owner of the design has destroyed the novelty of its own design by first disclosing it in Hong Kong before doing so in the EU.
The judge was minded to agree with the defendant (i.e. that the design has to be exhibited in the EU first in order to benefit from unregistered design protection) but decided EU law was not clear. He therefore referred the question to the CJEU.
This means that in a year or two, an EU court will determine whether or not designers need to exhibit their designs in the EU first (at the expense of non-EU countries) or face copycat-ageddon in the EU. Who fancies a bet on that one?
With regard to TRIPs, I can see that it is arguable that entities domiciled in the EU are more likely to market newly designed articles first within the Community and thereby to gain UCD protection for the design, as opposed to those domiciled outside the EU who may be more likely to market first outside the Community and thereby risk depriving themselves of UCD protection. However, the European legislature has not in the past been averse to a Fortress Europe approach to legislation and this has been upheld by the CJEU.
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