A multi-perspective view on visibility in EU design law

Abstract

Abstract In EU design law, the parameter of visibility must multitask. This article aims to discuss its meaning and legal consequences against the current and amended legal provisions for designs. As the legal notion of a design is the ‘appearance of a product’, visibility has been woven into design features’ requirement of perceptibility to the eye. Visibility also aids in the identification of the object of protection for a registered design through the registration documentation and, analogically, the identification of an unregistered design through proofs of disclosure. By this token, design features visibly displayed by the representation/disclosure of a design determine the comparison between the overall impression of a design and another design/product for the purposes of invalidity or enforcement. The Court of Justice of the European Union (CJEU) has also recently framed visibility in the perspective of evidentiary issues of technical functionality. Visibility represents a prerequisite for the assessment of novelty and/or individual character of a design of a component part of a complex product. This article looks into the CJEU’s guidance concerning the protection of parts of products, including the interpretation of the criterion of visibility during normal use that applies to component parts.