Summary
The enlargement of the European Union has become a fact now and Cyprus is one of the countries that will very soon join the Community. In order to harmonize the national legislation with the concept of free circulation of goods within the Community and the respect of competition, Cyprus has recently introduced the law N. 4(I)/2002, which ratifies the EU Directive for the legal protection of industrial designs.
What is an industrial design?
An industrial design is the ornamental or aesthetic aspect of an article. It can be three-dimensional such as a shape or surface, or two-dimensional such as patterns, lines or colors. In other words it can only protect the aesthetic nature of an article and not its technical features.
Why protect an industrial design?
The development of a design and the whole procedure for its protection is quite simple and inexpensive. The aesthetic part of an article plays a key role to the increase of its commercial value. It is thus vital and advised that the design is protected against unauthorized copying or use.
How to protect an industrial design:
In Cyprus, an industrial design can be protected under law N. 4(I)/2002 relating to legal protection of industrial designs and also under copyright law. Industrial design and copyright protection can exist concurrently.
In order for a design to be eligible for protection it generally needs to be "new" and have an "individual character". Law N. 4(I)/2002 specify the above requirements:
Registration
For a design to be registered and protected it must be novel, and it must be filed according to the provisions of the Law. The procedure for the registration of a design is usually completed within 2 to 3 years from the date of submission of the design application.
Novelty:
Article 4 (2) provides that a design is considered to be new if up to the filing or priority date, no identical design or sample has been disclosed to the public. The article itself defines the meaning of "identical" to be designs or samples whose characteristics differ only in minor details.
Individual Character:
Article 4 (3) provides that a design or sample has individual character if the overall impression that makes on the informed user differs from that which is produced by a design or sample which is disclosed to the public before the filing or priority date. In order to appraise the individual character of a design or sample, consideration is given to the degree of free will of its creator at the time of its creation.
Disclosure to the public:
Article 4 (4) gives the definition of disclosure to the public. A design or sample is considered that it has been disclosed if:
a) It has been published, through its filing or any other way; or
b) It has been exposed; or
c) It has been used in commerce; or
d) It has been disclosed in any other way.
However, disclosure will prevent the design from protection only when it occurs during the normal business practice in the area concerned by professionals who operate either within Cyprus or the European Union, before the filing date of the application or the priority date. Additionally, a design or sample is not disclosed to the public when it is disclosed to someone under an explicit or implicit confidentiality term.
When the design has been disclosed by its creator, or beneficiary, or by a third party acting on their behalf, within the 12 month period before the filing or priority date, this does not invalidate novelty according to Article 4(5)(a). This also applies when the disclosure has taken place as a result of abusive misconduct against the creator or the beneficiary.
Exclusions from protection:
The following are not entitled for protection under the Act:
1) A design or sample that is contrary to public order or public morality,
2) A product whose characteristics of appearance derive exclusively from its technical function,
3) A design or sample whose characteristics of appearance must necessarily be reproduced identically for interconnection with another product so that they will enable the latter to perform its function. However, a design or sample that enables the multiple assembly or connection of interchangeable products inside a modular system does not fall under the 3rd exclusion so long as it satisfies the criteria of novelty and individual character.
Applicants eligible for application:
Eligibility for application for industrial design protection is provided to:
a) Individuals who are residents of or have their usual residence in Cyprus or in a EU Member State; and,
b) Companies or other legal entities that have their actual industrial or commercial establishment in Cyprus or in an EU Member State.
Exclusive rights and their limitation:
The protection of industrial design or sample grants to its proprietor the exclusive right of use and prohibits others from using the design or sample without his consent. The Act itself specifies the term "use" to include manufacture, offer, marketing, import, export, use or possession for these purposes of a product incorporating or applying the said design or sample.
The above rights are not infringed by:
a) Private acts done for non-commercial purposes,
b) Acts done for experimental purposes,
c) Acts done to reproduce the design or sample for educational reasons, but so long as the source is named and these acts do not contradict to commercial ethics.
Duration of protection:
The maximum duration of protection of a design is 25 years as of the filing date of the application divided into 5 periods of 5 years. The proprietor is entitled to renew the duration of the protection for one or more periods up to 25 years just by paying the relevant fees.
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