The Court of Justice of the European Union has recently decided the case of Gautzsch Großhandel, which relates to the novelty of registered and unregistered designs in Europe.
A design is deemed to be new if it has not been made available to the public, but public disclosures are excluded from consideration if they “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(1) CDR).
In Gautzsch Großhandel, the CJEU provided some guidance as to what should be included in these “specialised circles”.
Firstly, the CJEU stated that these circles should not be limited to persons involved in creating designs and developing or manufacturing products based on those designs. It is possible for a trader operating in the sector concerned to be considered part of the “specialised circles”, depending on the circumstances of the particular case.
Secondly, the judgement states that a product may not have become known in the normal course of business if it is disclosed to just one undertaking or in the showrooms of an undertaking outside the European Union. The judgement confirms the position that “it is not absolutely necessary… for the events constituting disclosure to have taken place within the European Union in order for a design to be deemed to have been made available to the public.”
Finally, on the subject of unregistered designs, the CJEU confirmed that the burden of proof is on the person seeking to assert their rights, meaning that evidence of copying must be provided by the claimant. However, in cases where it is “impossible or excessively difficult” for the right holder to provide this evidence, the courts must “use all procedures available to it under national law to counter that difficulty, including, where appropriate, rules of national law which provide for the burden of proof to be adjusted or lightened”, seemingly making way for an easing of the burden of proof on the claimant in these cases.