Under EU Regulation No. 6/2002 on Community designs, a registered design is defined as the appearance of a product or part of a product, resulting from features such as lines, contours, colours, shape, texture, or materials of the product itself or its ornamentation, including movement, transition, or any other kind of animation of those features. On this basis, a registered design may cover the design of a chair — in terms of the materials used, the shape of the backrest, and the proportions of the legs — protective gloves in terms of material, colour, and pattern, or a cosmetic bottle in terms of the shape of the flacon, colour combination, and cap design.
To qualify for protection as a Community registered design, the design must be new and have individual character.
A design is considered new if no identical design has been disclosed to the public before the date of first disclosure (for unregistered designs) or before the filing or priority date (for registered designs). Designs are considered identical if their features differ only in immaterial details. This means that before filing, a business must search the design registers to confirm no identical design has already been disclosed. If one has, the novelty requirement is not met. It is also worth noting that minor cosmetic changes — such as slightly adjusted proportions or the addition of small details — may not be sufficient to establish novelty.
Under Polish and European case law, the individual character of a design is assessed from the perspective of the so-called informed user: someone who is neither a designer nor a technical expert, but who uses the product regularly, is familiar with existing designs in the relevant sector, and pays a relatively high degree of attention when using or evaluating products.
Individual character is present where a design produces an overall impression that is different from any prior design — in other words, where there is no sense of “I’ve seen this before.” In practice, this means the product must be designed in a way that creates a clearly distinct visual impression for the informed user.
One important factor in assessing individual character is the designer’s degree of freedom. Where a product must meet strict functional requirements, the designer has less room to manoeuvre — and consequently, even relatively subtle differences between designs may be sufficient to establish individual character. Conversely, where there is greater creative freedom, differences must be more pronounced to create a genuinely distinct overall impression.
Crucially, Community registered design protection does not extend to features of a product’s appearance that are dictated solely by its technical function. When assessing whether a feature is technically dictated, a broad approach is taken — the assessment looks at the motivation behind the choice of that feature and whether alternative designs exist that could achieve the same technical result. A chair must have a backrest to be a chair rather than a stool; that constrains the designer’s formal choices. But the material, colour, and surface treatment of the backrest remain open to creative decision-making. Before filing, a business should identify which features of its product are technically dictated in order to map the actual scope of available protection. Where creative freedom is limited, even subtle design choices may carry legal weight — but a design consisting entirely of technically necessary features, with no creative input from the designer, may be vulnerable to invalidity proceedings under Article 25 of the Regulation.