Keurkoop Bv v Nancy Kean Gifts Bv: ECJ 14 Sep 1982

ECJ The protection of designs comes under the protection of industrial and commercial property within the meaning of article 36 inasmuch as its aim to define exclusive rights which are characteristic of that property. In the absence of community standardization or a harmonization of laws the determination of the conditions and procedures under which protection of designs is granted is a matter for the national rules of each member state. In its present state community law does not preclude the adoption of national provisions to the effect that the person who first files the design acquires the exclusive right to it without its being necessary to inquire whether that person is also the author of the design or a person entitled under him and without those concerned being entitled to allege that the person filing the design is not the author, the person commissioning him or his employer. Although a right to a design, as a legal entity, does not as such fall within the class of agreements or concerted practices envisaged by article 85(1), the exercise of that right may be subject to the prohibitions contained in the treaty when it is the purpose, the means or the result of an agreement, decision or concerted practice. The proprietor of a right to a design acquired under the legislation of a member state may prevent the importation of products from another member state which are identical in appearance to the design which has been filed, provided that the products in question have not been put into circulation in the other member state by, or with the consent of, the proprietor of the right or a person legally or economically dependent on him, that as between the natural or legal persons in question there is no kind of agreement or concerted practice in restraint of competition and finally that the respective rights of the proprietors to the right to the design in the various member states were created independently of one another.

Citations:

R-144/81, [1982] EUECJ R-144/81, [1982] ECR 2853

Links:

Bailii

Cited by:

CitedMastercigars Direct Ltd v Hunters and Frankau Ltd CA 8-Mar-2007
An allegation was made that Cuban cigars imported by the claimant infringed the trade marks of the respondents being either counterfeit or parallel imports, and were impounded. The claimant sought a declaration of non-infringement and their release, . .
CitedOracle America Inc v M-Tech Data Ltd SC 27-Jun-2012
The appellant complained that the respondent had imported into the European Economic Area disk drives bearing its trade marks in breach of the appellant’s rights. The respondent had argued that the appellant had abused its position by withholding . .
Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Updated: 21 June 2022; Ref: scu.215100