Deferred Publication of EU Design Applications: A Tool for Maintaining Competitive Advantage

Request for Deferred Publication

The applicant can file a Request for Deferred Publicationfor a EU Design Application. 

When submitting a design application, applicants can request that its publication be delayed by 30 months from the application or priority date. This helps maintain a competitive edge by keeping the design undisclosed until it hits the market. Upon grant publication, only the core information about the Community Design is shared, such as the application number, filing and grant dates, grant number, and the names and addresses of the applicant and agent. Other details, including the representation of the design and product description, remain undisclosed.

However, third parties can access the full file if they have prior consent from the applicant or can prove a legitimate interest. Specifically, if a party presents evidence that the design holder is preparing to exercise rights on the deferred-published design, they have grounds for legitimate interest.

No registration certificate is issued while publication is deferred, but the design holder can request certified or uncertified excerpts of the registration details that identify the design, helpful for asserting rights against third parties.

The request for deferral must be made simultaneously with the design application. EUIPO does not accept deferral requests made later, even if on the same day. Since EUIPO can sometimes publish on the day of submission, if an oversight occurs, and deferral wasn't requested, the applicant should promptly withdraw the application to prevent publication. After withdrawing, it's advisable to immediately confirm the decision with the examiner.

The deferral fee must be paid along with the grant fee. During the new application stage, applicants can choose not to pay the publication fee.

Before the 27-month mark, the rights holder can inform EUIPO whether to publish the design as soon as possible or at the end of the 30-month deferral period. If no specific instruction is given, the design will be published at the end of the deferral period.