Article 11

1. A design shall be refused registration, or, if the design has been registered, the design right shall be declared invalid:

(a) if the design is not a design within the meaning of Article 1(a); or

(b) if it does not fulfil the requirements of Articles 3 to 8; or

(c) if the applicant for or the holder of the design right is not entitled to it under the law of the Member State concerned; or

(d) if the design is in conflict with a prior design which has been made available to the public after the date of filing of the application or, if priority is claimed, the date of priority, and which is protected from a date prior to the said date by a registered Community design or an application for a registered Community design or by a design right of the Member State concerned, or by an application for such a right.

 

2. Any Member State may provide that a design shall be refused registration, or, if the design has been registered, that the design right shall be declared invalid:

(a) if a distinctive sign is used in a subsequent design, and Community law or the law of the Member State concerned governing that sign confers on the right holder of the sign the right to prohibit such use; or

(b) if the design constitutes an unauthorised use of a work protected under the copyright law of the Member State concerned; or

(c) if the design constitutes an improper use of any of the items listed in Article 6b of the Paris Convention for the Protection of Industrial Property, or of badges, emblems and escutcheons other than those covered by Article 6b of the said Convention which are of particular public interest in the Member State concerned.

 

3. The ground provided for in paragraph 1(c) may be invoked solely by the person who is entitled to the design right under the law of the Member State concerned.

 

4. The grounds provided for in paragraph 1(d) and in paragraph 2(a) and (b) may be invoked solely by the applicant for or the holder of the conflicting right.

 

5. The ground provided for in paragraph 2(c) may be invoked solely by the person or entity concerned by the use.

 

6. Paragraphs 4 and 5 shall be without prejudice to the freedom of Member States to provide that the grounds provided for in paragraphs 1(d) and 2(c) may also be invoked by the appropriate authority of the Member State in question on its own initiative.

 

7. When a design has been refused registration or a design right has been declared invalid pursuant to paragraph 1(b) or to paragraph 2, the design may be registered or the design right maintained in an amended form, if in that form it complies with the requirements for protection and the identity of the design is retained. Registration or maintenance in an amended form may include registration accompanied by a partial disclaimer by the holder of the design right or entry in the design Register of a court decision declaring the partial invalidity of the design right.

 

8. Any Member State may provide that, by way of derogation from paragraphs 1 to 7, the grounds for refusal of registration or for invalidation in force in that State prior to the date on which the provisions necessary to comply with this Directive enter into force shall apply to design applications which have been made prior to that date and to resulting registrations.

 

9. A design right may be declared invalid even after it has lapsed or has been surrendered.