Shush, Don't Tell! Secret Design Applications In Austria And The EU

Schoenherr Attorneys at Law


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Both Austrian national designs as well as Registered Community Designs with EU-wide protection can initially be filed without disclosure...
European Union Antitrust/Competition Law
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Both Austrian national designs as well as Registered Community Designs with EU-wide protection can initially be filed without disclosure (i.e. secret applications). This means that their publication will be deferred. Secret design applications generally make sense if the applicant is interested in keeping a design undisclosed for as long as possible. The precise national and EU-wide regulations are not completely uniform.

Austria: Priority without presenting your design

Austrian legislation calls this type of design a "secret design" (Section 14 of the Austrian Design Act). The design representation(s) and the sample, should the applicant desire to submit one, plus the description must be submitted to the Austrian IP Office in a sealed envelope. The design is consequently entered in the register without representation, and access to the application documents is limited while the publication of the design is deferred. The envelope will only be opened ex officio 18 months after the priority date of the design. It may only be opened earlier upon the request of the applicant or a third party who proves that the applicant cited the design against that third party, for example, in a warning letter sent due to alleged design infringement.

A secret design enables its applicant to claim the priority of the design without disclosing it. However, the design will only be published and registered after the envelope has been opened. Since design protection in Austria commences upon the publication of the design, secret design applications always result in a delay of the commencement of protection, affecting the renewable five-year protection period.

EU: Protected secret from day one

When applying for a Registered Community Design (RCD) with EU-wide protection, deferment of the publication may be requested for a period of 30 months from the application/priority date ("deferment of publication", Art 50 CDR). If such a request is filed, the publication is initially limited to the design number, the filing date, the registration date and the names of the applicant, and, if applicable, to the representative as well as an indication to the deferment. No representation or description of the design will be published. Upon the expiry of the deferment period, or at any earlier date upon the right holder's request, the RCD will be published in its entirety.

Proceed only after publication

A "secret design" thus allows priority to be claimed without immediately publishing the design. If a third party uses a similar design after a "secret design" is filed, the applicant would need to request the publication of their design to take action against the third-party design based on the claimed priority.

Read the full blog article in English and German here or get more information about our trademark & design news here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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