On February 13, 2004, the European Court of Justice intervened on the notion of disclosure of designs (C-479/12). In order to acquire protection for a design, that design must be a new one and must have an individual character compared with all the designs which have gone before. These designs have to have been made available to the public, that is, they must have been published following registration or otherwise, or exhibited, used in trade or otherwise disclosed “except where these events could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the Community” (article 7 regulation n°6/2002). The European Court of Justice has set out the contours of this exception.
Firstly, the concept of «specialised circles» has to be understood broadly. It does not only concern the persons who are involved in the creation of designs. Indeed, the Court also takes into consideration the disclosure to traders. However, this point remains unclear as it is considered to be a question of fact that must be solved by the national courts.
In addition, the Court considers that the events constituting disclosure must not necessarily have taken place within the European Union. Similarly, disclosure in a single undertaking in the sector concerned in the European Union is sufficient. However, the Court adds once again that it is a question of fact left to the national court.
Finally, the Court states that it is the person who is seeking to assert his or her rights who bears the burden of proof in demonstrating copying. It seems difficult for the rightholder to come up with this proof and therefore the national courts must counter that difficulty by lightening the onus of proof. Claims for compensation, destruction of infringing products and injunctions against the infringer must also be governed by national law.
If the decision of the European Court of Justice clarifies the notion of disclosure relating to designs, many elements must be determined by the national law. Therefore, we may fear an absence of harmonization in the national regulations and the practical difficulties.