Two Major Grounds for Rejection by EUIPO in Community Design Registration - Why Could Your Design Be Rejected?

Rejection

The EUIPO's rejection of community design is limited to two grounds for non-registrability:

• The design does not meet the definition set out in Article 3a of the International Treaty on Trade in Goods and Services. This states that a design is "the appearance of the whole or part of a product, particularly including lines, contours, colors, shape, texture and/or materials and/or its ornamentation." A "product" is any industrial or handicraft item, including components intended to be assembled into a complex product, packaging, get-ups, graphic symbols, and typographic typefaces, but excluding computer programs. The actual manufacture or use of the product in an industrial or handicraft manner is not examined.
• Whether the design has disclosed the appearance of a "product" in whole or part is assessed based on the design itself. The design must clearly indicate the nature, intended purpose, or function of the product in which the design is to be incorporated or applied.
• Blueprints, house plans, or other architectural drawings, as well as interior or landscape designs, are regarded as "products" only when marked accordingly as printed matter falling within Locarno Class 19-08. If the stated product is a house plan but falls under Locarno Class 25-03, it will lead to objections since blueprints do not show the appearance of finished products like houses.
• Colors alone and color combinations: A single color can be an element of a design, but it does not define a design in itself because it doesn't constitute the 'appearance of a product.' Color combinations associated with a product, like logos or graphic symbols in Locarno Class 32, can be accepted.
• Icons: The appearance of computer program screen displays, icons, and other visual elements can be registered.
• Pure language elements: Simple text and sequences of letters (written in standard characters, black and white) don't fit the definition of design as they don’t form the appearance of a product. However, imaginative characters and/or designs with image elements can be protected as logos/graphic symbols in Class 32 or as decorative representations of any product part incorporating the design.
• Music and sounds: These do not constitute the appearance of a product, hence don't qualify as designs. However, graphical representations of musical works, if applied as printed matter in Class 19-08 or graphic symbols in Class 32, meet the design criteria.
• Photographs: They constitute the appearance of a product, independent of the content they display. Product indication may be writing paper or printed matter as per Locarno Class 19-08 or any product embodying the design.
• Biological entities are not "products," meaning they are neither industrial goods nor craft items. Designs depicting the natural appearance of plants, flowers, fruits, etc., are generally not accepted. Without evidence suggesting the form results from hand or industrial processing, designs would be denied. However, if representation or description clarifies a non-living or artificial nature, they would not be rejected, as referenced in Locarno Class 11-04.
• Educational materials: Graphs, charts, maps, and similar educational items can represent products under Locarno Class 19-07.
• Concepts: If a design application represents merely one instance among many products the applicant wishes to protect, the application will be rejected. Proprietary rights cannot be granted for "non-specific" designs that can take multiple forms. Applications involving concepts, inventions, or methods of obtaining a product fall into this category.

Violation of public policy or accepted principles of morality:

• If a design is found to violate public policy in even part of the EU, this suffices for rejection.
• A design's use need not be illegal; if deemed unlawful under EU or national law, it should be rejected under Article 9 of CDR.
• Designs depicting or promoting violence or discrimination based on gender, race, ethnicity, religion, belief, disability, age, or sexual orientation are grounds for rejection.
• A design considered obscene or offensive to a rational person of normal sensibility and tolerance can be rejected on moral grounds. 

If the EUIPO issues a rejection decision based on one of the two non-registrability grounds mentioned above, the applicant has 2 months to either voluntarily withdraw or amend the design, or provide statements.

• If the rejection concerns compliance and can be overcome through amendments, the EUIPO will suggest modifications in the notification sent to the applicant.
• If the applicant chooses to submit amendments and requests to "retain the design's features," such amendments will be accepted. The date of receiving these amendments will be recorded as the filing date of the design.
• If the applicant fails to address the non-registrability grounds within the deadline, the EUIPO will reject the application. If these grounds affect only part of a multiple design application, the EUIPO will only reject the portion related to those designs.