Industrial design, case VI SA/Wa 109/09

April 19th, 2009, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 4 April 2009 case file VI SA/Wa 109/09 ruled that is not important, who disclosed the design. The PPO correctly pointed out on the wording of the provisions of Article 103(3)(ii) of the Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej), published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with subsequent amendments.

1. An industrial design shall be considered new if, before the date according to which priority to obtain a right in registration is determined and subject to paragraph (2), no identical design has been made available to the public, i.e. used, exhibited or otherwise disclosed. Designs shall also be deemed to be identical with those made available to the public if their features differ only in immaterial details.
3. The provision of paragraph (1) shall not prevent a right in registration to be granted, if a design:
ii) has been disclosed during 12-month period preceding the date according to which priority to obtain a right in registration is determined, by the designer, his successor in title or a third person with the right holder’s consent, as well as if the disclosure has occurred as a consequence of an abuse in relation to the designer or his successor in title.

Only the disclosure by the creator, his legal successor, or – with the consent of the holder – by a third party, and if the disclosure was made as a result of abuse in relation to the creator or his successor in the 12 months period before the priority date, does not harm the novelty requirement, any other publicly available disclosure of a design is an obstacle for the novelty requirement.

Wzór Przemysłowy 10571

This case concerned the industrial design “Parapet okienny” (in English: windowsill), Rp-10571. See also “Polish case law on industrial designs“.