The right to industrial design is one of the rights of intellectual property. It is regulated by the Law on the Legal Protection of Industrial Design (“Official Gazette of RS”, No. 104/2009, 45/2015 and 44/2018 – other law). The subject of the legal protection of industrial design is the external appearance of a product suitable for industrial or craft production or its part.
Industrial design is a three-dimensional or two-dimensional appearance of the whole product, or its part, which is determined by its visual characteristics, especially lines, contours, colours, shape, texture and/or materials from which the product is made, or with which it is decorated, as well as their combination.
A product is an industrial or craft item, including, among other things, parts that are intended to be assembled into a complex product, product packaging, the overall visual identity of the product, graphic symbols and typographic signs, excluding computer programs.
It should be emphasised that the material itself is not subject to industrial design protection. Materials may be protected by patent.
Conditions for the protection of industrial design
The conditions determined by the Law on Legal Protection of Industrial Design (“Official Gazette of the RS”, No. 104/2009, 45/2015 and 44/2018 – other law) that the product must meet to be able to protect the industrial design are:
- Novelty and
- Individual character.
An industrial design is considered new if an identical industrial design has not become available to the public before the date of submission of the application for the recognition of that industrial design or before the date of the recognised right of priority if it has been requested, or if there is no previously submitted application for the recognition of the identical industrial design which has become available to the public. Industrial designs are considered equivalent if they differ only in non-essential details.
An industrial design has an individual character if the overall impression it leaves on an informed user differs from the overall impression left on that user by any other industrial design that became available to the public before the date of filing the industrial design application or the date of the recognised right of priority. When determining the individual character of industrial design, the degree of freedom of the author is taken into account when creating the industrial design of a particular product.
Industrial product design that is an integral part of a complex product
A complex product comprises multiple parts that can be replaced, allowing the product to be assembled and disassembled.
An industrial design applied to a product, or contained in a product that forms an integral part of a complex product, is considered to be new and to have an individual character:
- if the component that is built into the complex product remains visible during the regular use of the complex product and
- if the visible characteristics of the constituent part meet the conditions of novelty and individual character.
Regular use of the complex product means use by the end user, excluding maintenance, service or repair of the product.
Protection procedure
Legal protection of industrial design is achieved in an administrative procedure led by the Intellectual Property Office. The Intellectual Property Office maintains the Register of domestic applications for the recognition of industrial design rights and the Register of Industrial Designs.
An application for recognition of industrial design rights initiates the procedure for recognition of industrial design rights.
The application for recognizing industrial design rights is submitted to the Intellectual Property Office in writing, directly or by mail.
The application must contain the following:
- request for recognition of industrial design rights
- description of industrial design
- two-dimensional representation of an industrial design.
One application may contain a request for the recognition of industrial design rights for one or more up to 100 industrial designs.
Suppose an industrial design application contains a request to recognise rights for several industrial designs. In that case, all products to which that industrial design is applied must be classified in the same class and subclass of the international industrial design classification.
Against the decisions of the Intellectual Property Office, an appeal can be lodged with the Government of the Republic of Serbia within 15 days from the date of receipt of the decision. Against the decision of the Government of the Republic of Serbia on the appeal, an administrative dispute can be initiated within 30 days from the date of receipt of the decision of the Government of the Republic of Serbia.
International registration of industrial design
The holder of industrial design rights, i.e. the applicant for recognition of industrial design rights, can submit a request for international industrial design registration following the Hague Convention, ratified by the Federal Republic of Yugoslavia in 1993. The request for international industrial design registration shall be submitted through the Intellectual Property Office.
A foreign natural or legal person who does not have a residence or headquarters in the territory of the Republic of Serbia must be represented in proceedings before the Intellectual Property Office by a representative who is entered in the Register of Representatives maintained by the Intellectual Property Office or by a domestic lawyer.
Right of priority
From the date of submission of the application, the applicant enjoys the right of priority concerning all other persons who apply for the same industrial design later.
Exceptional cases of the right of priority are convention and fair rights of priority.
A legal or natural person who submitted a proper application of an industrial design with effect in a member country of the Paris Union or the World Trade Organization will be recognised in the Republic of Serbia with a convention right of priority from the date of submission of that application if he applies to the same industrial design in the Republic of Serbia within six months from the date of submission of the application with effect in the respective country. The application for the recognition of an industrial design shall indicate the filing date, application number, and country for which the application is filed.
The applicant who, within three months before the date of submission of the application, exhibited an industrial design at a domestic fair or exhibition of an international character or in another country that is a member of the Paris Union or the World Trade Organization may request recognition of the right of priority in the application from the day of the first exhibitions of that industrial design. Along with the application, the applicant submits a certificate from the competent authority of a member country of the Paris Union or the World Trade Organization that the fair or exhibition is international, with information on the type of fair or exhibition, venue, opening and closing date of the fair or exhibition, and the date of the first presentation of that design.
Content, scope and limitation of industrial design rights
Content of industrial design rights
The industrial design right holder has the exclusive right to use the protected industrial design and to deny that right to any third party. The use of a protected industrial design, in particular, means the manufacture, offer, placing on the market, import, export or use of a product in which the design is incorporated or on which it is applied or the storage of such a product for the stated purposes.
Industrial design copyright
The author of the industrial design has moral and property rights.
The moral right is the right of the author of an industrial design to have his name mentioned in the industrial design application, writings and documents.
The property right is the right of the author of the industrial design to enjoy the economic benefit from the exploitation of the protected industrial design.
Suppose the author of the industrial design is not the holder of the right to the industrial design. In that case, the form of the economic benefit enjoyed by the author of the protected industrial design from its exploitation is determined by the contract between the holder of the industrial design and the author of the industrial design.
Scope of industrial design rights
The right acquired based on a registered industrial design includes any industrial design that does not leave a different overall impression on the informed user. When determining the scope of rights, the degree of freedom of the author when creating the design is taken into account.
The applicant may, himself, or at the written request of the competent authority within the time allowed, declare that he does not claim any exclusive rights to the industrial design element specified in the description of the industrial design.
Right of prior use
The right to an industrial design does not apply to a conscientious person who, before the date of the recognised priority right of application in the country, has already started using the same industrial design in production or has made all the necessary preparations for starting such use.
The conscientious person who acquired the right of earlier use:
- has the right to use the industrial design exclusively for production purposes, in his company or workshop, or in another’s company or workshop for his own needs and
- he cannot transfer his right to use an industrial design to another unless he also transfers the right to a company, a workshop, or a branch where the use of that industrial design was prepared or started.
Limitation of rights
The industrial design right holder cannot prohibit the third party from using the industrial design:
- for private and non-commercial purposes
- for experimental purposes
- for teaching purposes
- for the smooth operation of international traffic.
Exhaustion of rights
If the holder of industrial design rights in the Republic of Serbia has placed on the market a product that contains a protected industrial design, i.e. a product designed according to a protected industrial design, or if the holder of industrial design rights has authorised a person to put such a product on the market in the Republic of Serbia, he does not have the right to prohibit third parties from further disposing of that product, purchased in legal traffic.
Relationship with other forms of protection
The provisions of the Law on Legal Protection of Industrial Design (“Official Gazette of the RS”, No. 104/2009, 45/2015 and 44/2018 – other law) shall not affect existing rights related to trademarks or other distinctive signs, patents or small patents, typographic signs, unregistered industrial designs, as well as the application of regulations governing civil liability or unfair competition.
An industrial design protected under the provisions of the Law on Legal Protection of Industrial Design (“Official Gazette of the RS”, No. 104/2009, 45/2015 and 44/2018 – other law) also enjoys protection based on the Law regulating copyright from the date the industrial design was created, i.e. when it was expressed in a specific form.
Termination of industrial design rights
The industrial design right ends:
- If the industrial design right holder fails to pay the prescribed fee for maintaining the right
- If the holder of the industrial design right waives the right – on the day following the date of submission of the waiver submission to the competent authority
- based on a court decision or a decision of a competent authority, in the cases provided for by the Law on Legal Protection of Industrial Design (“Official Gazette of the RS”, No. 104/2009, 45/2015 and 44/2018 – other law) – on the day determined by that decision
- If the legal entity has ceased to exist or if the natural person who is the holder of the right to the industrial design has died – on the day of the termination of the legal entity, i.e. the death of the natural person unless the right to the industrial design has passed to the legal successors of these persons.
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