Drawings and models

The drawings and model belong to the Intellectual property. They have a Statut hybrid, being at the same time protected by the Literary property and artistic and by the Industrial property. This double protection is reaffirmed by the European Directive of October 13rd 1998 relating to the protection of the drawings and models which started the process of harmonization. This directive is transposed in French Droit by the Ordonnance of July 25th 2001.

The Ordinance of July 25th, 2001 became applicable to October 1st, 2001. Consequently, have regard to the principle of Not retroactivity of the law in time, the drawings and models deposited before this date remain governed by the old law with regard to their validity.

The process of harmonization of the European countries is supplemented in 2002 by the coming into effect of the Règlement n° 6/2002 of the Council of December 12th 2001 on the drawings and models Community, instituting a unit title for the whole of the territory of the European Union.

One will generally speak about the drawings when they are creation in two dimensions and models concerning creations in Three dimensions.

Stake X

The drawings and models are a key component of the Innovation in the economy of immaterial the. The experts think that the immaterial one (or intangible) accounts for approximately 60 to 70% of the value of the Actif S of the Entreprise S.

The implementation of the Norme S accountants IAS/IFRS on the scale of the European Union since 2005 involves the need Comptabiliser the immaterial Capital in the Intangible fixed assets (standard IAS 38).

Conditions of protection by the French right of the drawings and models

The right of the drawings and models protects appearance from a manufactured good, its esthetics. Consequently, a determining condition for protection will be the visibility of creation to be protected.

Moreover, the article L. 511-2 of the Code of the intellectual property (CPI) lays out that " only can be protected the drawing or model which is Nouveau and present a clean character ".

the innovation

Before the Ordinance of 2001

It should be noted that this condition exists only since the directive of 1998; previously, one applied to the place a concept, more Subjective:

The old text lays out indeed, by the means of the article L. 511-3 old of CPI, that protection can be granted to “ any drawing new, with any new plastic form, any industrial object which differs from its similar, either by a configuration distinct and recognizable giving a character of innovation to him, or by one or more external effects giving him a clean and new aspect ”.

The condition appears broader than today since it is made there no allusion to the informed observer.

However, it is here about originality more than of character clean, as the Court of Appeal of Paris (06.12.1999) states it: “ the benefit of the protection founded by the code (…) is subordinated, not only with the innovative character of the model deposited, but also with its originality, which implies that it translates, in particular by its presentation, the taste and the imagination of its creator ”.

In this direction, the originality was appreciated same manner as in royalty.

Since the Ordinance of 2001

It is today about a concept much more objective: according to the article L. 511-3 of CPI, the innovation is characterized if no drawing or identical model were revealed at the date of the application of recording, or at the date of asserted priority. Is regarded as identical a drawing or model from of which characteristics different only by unimportant details.

Only the anteriorities revealed before the date of filing or the date of priority of the drawing or recorded model are destroying of innovation. The essential criterion is thus that of the date of disclosure.

Under article L. 511-6, “ a drawing or a model is famous to be revealed if it were made available to the public (…) ”. It does not matter the author of the disclosure, the mode of disclosure, and dates it from the former disclosure, as long as this disclosure could be known by the professionals of the interested sector acting in the European Community.

clean character

This condition with the validity of the drawings or models appeared at the time of the transposition of the Directive of 1998. However, it is noted that the formula appearing in this directive, just as in the Règlement of 2002, is that of " individual character " (This concept will be developed in the framework of the drawing and Community model) .

The clean character is appreciated in manner Subjective.

According to the article L. 511-4 of CPI, “ a drawing or model is clean when the overall visual impression that it causes at the informed observer differs from that produced by any drawing or model revealed before the date of the application of recording or before the date of priority asserted. For the appreciation of the clean character, it is taken account of left freedom with the creator of the production of the drawing or model ”.

The article also lays out that within the framework of this appreciation, it will be taken account of left freedom with the creator in the realization of the model (it is for example difficult to confer on a model Roue of bicycle a really clean and single character, certain characteristics having to be preserved: the necessarily round form, the central axle…).

the observer informed

In a judgment of the Court of Bankruptcy of Paris dated February 15th, 2002, it was judged “ that the informed observer is not an expert but must be meant of user equipped not with average attention but of a particular vigilance, that it is because of its personal experience or its wide knowledge of the sector considered ”.

What it is necessary, it is that the observer is " averti" i.e., by definition, qualified, warned and tested.

It is compared to him that the existence of a clean nature will be judged, or on the contrary the banality of the model taking into consideration what already exists.

visual impression overall

The general visual impression produced by creation on the informed observer must differ from that produced by the former disclosures.

This total impression must “ make it possible the model to dissociate its similar ” (Court of Appeal of Paris, 28.11.2001). This concept of similar corresponds to the revealed models, then appreciated manner identical to the criterion of innovation.

the creations excluded from protection

nonvisible products

The specific right of the drawings and models protects appearance from the Manufactured good , or part of these products, " characterized in particular by its lines, its contours, its colors, its form, its texture or its materials " (L.511-1 article of the Code of the intellectual property). in fact thus creations addressing itself to the sight will be able to reach this protection, because of their particular aspect.

As example, one can quote celebrates it decision of the civil court of Mulhouse dated April 2nd 1954, which refused protection by the drawings and models with an internal mechanism of bed-settee: this creation not being visible, it could not claim with this protection.

The " design" that one wishes to protect must above all be visible on the act of returned deposit with INPI. thus, the part interns of a shoe " nonvisible on photography without legend given to the INPI " cannot be declared protégeable, since not connect (Court of Appeal of Paris, 4th room, September 20th 1995).

The apparent character or not of the product will be also characterized by appreciating the presentation of this one with its sale: thus, it does not matter that the part toothed of a grip-comb, used, is hidden by hair of the user since it is entirely visible when it is offered to the sale (Court of Appeal of Paris, 4th room, January 22nd, 1995).

objects of the public domain

Contrariety with the law and order and the moralities

forms dictated by the function of the product

parts of interconnection and mechanical connections of nonmodular products

right of the drawings and models Community

the drawing or Community model recorded

the drawing or Community model not recorded

Following the adoption, on December 12th, 2001, Payment on the drawings or models Community, the protection of the drawings or Community models not recorded is possible since March 6th, 2002. The payment of 2001 takes again the provisions of the directive of 1998: the conditions of protection are thus the same ones, just like the definition of the concept of Divulgation.

A drawing or model not recorded is protected during three years as from the first disclosure with the public, and this within the European Community. Consequently, the first disclosure which does not take place in the European Community does not give birth to the drawing or model not recorded, owing to the fact that the carencia does not exist for the drawing or model not recorded.

Indeed, in the case of the drawing or recorded Community model, a disclosure apart from the Community territory which would intervene in the 12 months preceding the deposit would not affect the innovation and thus the validity of the model. A drawing or model which would thus be revealed outside the European Community cannot thus claim any more with protection by the drawing or model not recorded, but its holder has 12 months to ask for the recording of it in front of OHMI.

The drawing or model is famous to be revealed with the public when:

he was published

he was exposed

he was marketed or revealed in any other manner, except if these facts could not “ reasonably be known specialized milieux of the sector concerned operative in the Community ” (article 7 (1)).

The creator has one shorter duration rights and with a range more restricted than a recorded holder of drawings and models: he can prohibit only the use which results from a copy of the model.

The interest of this device is to ensure a protection creations whose life cycle is relatively short, and for which the procedure of recording is too heavy (in the sector of the mode for example). In France, the drawing or Community model not recorded does not have much interest because of protection by the royalty.

See too

External bonds

Site of the INPI
Légifrance
Site of the OHMI
European directive 98/71/CE of the European Parliament and the Council of October 13rd, 1998 on the legal protection of the drawings and model

While waiting for the continuation of the process of writing of this article, you can consult this very detailed page.

Difficulties related to the transposition of article 17 (relationship with the royalty) in the others États-membres that the France.

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