Distribution of images possibly sufficient to be known in the course of business to the circles specialized in the sector concerned
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Distribution of images of a design to traders operating in the involved sector in the Union can be sufficient to be known in the course of business to the circles specialized in the sector concerned.
"30. Consequently, the answer to the first question is that, on a proper construction of Article 11(2) of Regulation No 6/2002, it is possible that an unregistered design may reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the European Union, if images of the design were distributed to traders operating in that sector, which it is for the Community design court to assess, having regard to the circumstances of the case before it."
Possibility that an unregistered design may not have become known in the circles specialised in the sector concerned even though it was disclosed to third parties if it has been made available to only one undertaking in that sector or has been presented only in the showrooms of an undertaking outside the European Union.
"36. In the light of the foregoing, the answer to the second question is that, on a proper construction of the first sentence of Article 7(1) of Regulation No 6/2002, it is possible that an unregistered design may not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the European Union, even though it was disclosed to third parties without any explicit or implicit conditions of confidentiality, if it has been made available to only one undertaking in that sector or has been presented only in the showrooms of an undertaking outside the European Union, which it is for the Community design court to assess, having regard to the circumstances of the case before it."
Holder of protected design must bear the burden of proving that the contested use results from copying that design; national law may counter difficulties in production of evidence.
"44. Consequently, the answer to the third question is that, on a proper construction of the first subparagraph of Article 19(2) of Regulation No 6/2002, the holder of the protected design must bear the burden of proving that the contested use results from copying that design. However, if a Community design court finds that the fact of requiring that holder to prove that the contested use results from copying that design is likely to make it impossible or excessively difficult for such evidence to be produced, that court is required, in order to ensure observance of the principle of effectiveness, to 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."
Defenses of extinction of rights over time and of an action being time-barred are governed by national law
"50. Consequently, the answer to the fourth and fifth questions is that the defences of the extinction of rights over time and of an action being time-barred that may be raised against an action brought on the basis of Articles 19(2) and 89(1)(a) of Regulation No 6/2002 are governed by national law, which must be applied in a manner that observes the principles of equivalence and effectiveness."
Claims for the destruction of infringing products are governed by the law of the state in which the acts of infringements have been committed; claims for compensation for damage are governed by the national law of the Community design court hearing the proceedings
55. In the light of the foregoing, the answer to the sixth question is that, on a proper construction of Article 89(1)(d) of Regulation No 6/2002, claims for the destruction of infringing products are governed by the law of the Member State in which the acts of infringement or threatened infringement have been committed, including its private international law. Claims for compensation for damage resulting from the activities of the person responsible for the acts of infringement or threatened infringement and for disclosure, in order to determine the extent of that damage, of information relating to those activities, are governed, pursuant to Article 88(2) of that regulation, by the national law of the Community design court hearing the proceedings, including its private international law.
IPPT20140213, CJEU, Gautzsch v Joseph Duna
C‑479/12 - ECLI:EU:C:2014:75
