Finnish Bar Association
FBA
The FBA is a public entity that is founded by law (The Finnish Advocates Act 496/1958), and the statutes of the FBA have been verified by the Finnish Ministry of Justice (Statutes of the Finnish Bar Association 540/2012).
ID: 110038846474-18
Lobbying Activity
Meeting with Anna-Maja Henriksson (Member of the European Parliament)
9 Apr 2025 · EU-law
Meeting with Fausto Matos (Cabinet of Executive Vice-President Henna Virkkunen)
9 Apr 2025 · Justice Policies
Response to Review of the Designs Directive
31 Jan 2023
Under Article 12 of the Proposal, it is suggested that the person in whose name the design right is registered, or prior to registration the person in whose name the application is filed, shall be deemed to be the person entitled to act in any proceedings before the office in the territory of which protection is claimed as well as in any other proceedings. In this respect, we would suggest considering specifying that the presumption exists for natural persons and legal persons. For the purpose of offering efficient means of declaring design rights invalid, Member States should provide for an administrative procedure for declaration of invalidity which is aligned to the extent appropriate to that applicable to registered EU designs at the Union level (recital 42 of the Proposal). Under Article 14 of the Proposal it is stated that the design right shall be declared invalid by virtue of a decision of the competent court or authority, and under Article 17 of the Proposal it is stated that The presumption of validity referred to in paragraph 1 shall be rebuttable by any procedural means available in the jurisdiction of the Member State concerned, including counterclaims. Under Article 31 of the Proposal, it is stated that without prejudice to the right of the parties to appeal to the courts, Member States shall provide for an efficient and expeditious administrative procedure before their offices for the declaration of invalidity of a registered design right. We understand that the Articles referred to above mean that despite of the fact that the administrative procedure must be available in all Member States, including a right to appeal the decision issued in the administrative procedure, invalidity questions may still be solved also in national courts without having the need to initiate separate administrative invality proceedings. Should the assumption be right, we would suggest considering whether a further specification is needed. Under Article 21 (1) of the Proposal it is suggested that a right of prior use shall exist for any third party who can establish that before the date of filing of the application, or, if a priority is claimed, before the date of priority, the third party has in good faith commenced use within the Member State concerned, or has made serious and effective preparations to that end, of a design included within the scope of protection of a registered design right, which has not been copied from the latter. We suggest considering adding that the burden of proof must lie within the party who claims that such right exists. Under Article 24 of the Proposal it is suggested that the holder of a registered design right may inform the public that the design is registered by displaying on the product in which the design is incorporated or to which it is applied the letter D enclosed within a circle. However, it is uncertain what legal effect such use would have in particular, in situations where the D-mark is used (misleadingly) without the actual registration. We note that in some member states unjustified use may lead to a fine. In addition, we note that similar clause is not included in the current European Union Trade Mark Directive regarding the use of the letter R within the circle. Neither there are clauses regarding the use of the letter C within the circle implemented in the EU-level Copyright directives nor applicable international agreements regarding copyrights. Therefore, we suggest considering if further harmonisation or specifications regarding misleading use should be needed. Finally, we note that there seems to be an error in Article 32 (3) in which it is stated that the request for renewal shall be submitted and the renewal fees shall be paid at least six months before the expiry of the registration as the corresponsive text in the Design Regulation (EC) No 6/2002 is within a period of six months.
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