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Paquet modèles Flashcard #2 : "Patrimoine culturel - motif de refus et motif de nullité"
Trademarks & Designs

Design Directive Flashcard #2 : "Cultural heritage"

Written by Frédéric Glaize

FLASHCARD #2

Cultural heritage

Texts: 
þ New Directive
¨ New Regulation

The adoption of a new Directive on designs introduces the possibility for Member States to incorporate into their national legislation provisions aimed at protecting national cultural heritage against monopolization through registered designs.

For this purpose, a new ground for refusal of registration and a new ground for invalidity are provided.

Concepts Concerned

Elements of cultural heritage are defined in the Convention for the Protection of the World Cultural and Natural Heritage (UNESCO General Conference of November 16, 1972), and intangible cultural heritage in the Convention for the Safeguarding of the Intangible Cultural Heritage, UNESCO, October 17, 2003). These elements include, for example, "monuments or architectural ensembles, artifacts, crafts, and costumes" (preamble of the Directive, Consideration 26) or "the traditional costume of a region" (Council of the European Union press release, December 5, 2023). The Directive also emphasizes that "elements belonging to cultural heritage of national interest" are concerned (Article 13 and Article 14).

Ground for Refusal of Registration

In the context of the traditionally very light substantive examination carried out by national offices, a new condition could be added. Member States will indeed have the option to provide that "the registration of a design must be refused when it contains a total or partial reproduction of elements belonging to cultural heritage of national interest" (Article 13 §3).

Ground for Invalidity

Among the grounds that may be invoked, either as a principal claim or by way of counterclaim, to invalidate the registration of a design, Member States may consider the case where "the design contains a total or partial reproduction of elements belonging to cultural heritage of national interest" (Article 14 §2).

Uncertainties about the Exact Scope of these New Provisions

The introduction of provisions relating to cultural heritage is a first in design law. What the Parliament and the Council have envisaged in the Directive is quite succinct, not very practice-oriented, and incomplete. For example it is not specified who has the right to invoke the provisions of Article 14 §2 in an invalidity action (while this clarification is systematically provided with regard to any other ground for invalidity). The notion of national interest is not defined in the Directive; therefore, case law may be called upon to define how this concept is appreciated in practice. The same goes for the notion of partial reproduction, which suggests plentiful discussion during litigation. Finally, the reference to UNESCO texts does not indicate what potential value can be attributed to the famous lists maintained by this institution, on which heritage elements are listed. 

In any case, since the transposition of the relevant provisions are optional, it will be up to each Member State to assess the opportunity to introduce these new grounds for refusal and invalidity into national law.
 

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