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Designs

1. Why is it necessary to protect a design?

By protecting a design, its owner secures for himself the exclusive right against unauthorized copying or imitation by third parties.
Since a design constitutes an aspect of the product which makes it appealing to the eye and attractive, it is not just an artistic or creative element - it also contributes to the commercial value of the product and facilitates its marketing and commercialization.
Design protection contributes to the market development of a product and enables a return on investment in it.
Design protection promotes creativity in the sectors of industry and crafts, contributes to an expansion of economic activities and increases export potentials of national products.

2. What is a design?

A design is a three-dimensional or two-dimensional appearance of an entire product, or of its part, which is determined by its visual characteristics, in particular by lines, contours, colors, shape, texture and materials of which the product is made or with which it is decorated, and the combination thereof.

The appearance of the product is understood to mean a complete visual impression which the product makes on an informed consumer or user.

An informed consumer or user is an individual who is regularly in contact with the product concerned.

A product is an industrial or handicraft item, including the parts intended to be assembled into a complex product, the packaging of the product, graphic symbols and typographic typefaces, but excluding computer programs.

A three-dimensional design is a creation which comprises three-dimensional characteristic features, such as a new model of a car or furniture, etc.

A two-dimensional design comprises two-dimensional characteristic features (an image, pattern, matrix, ornament, configuration, etc.)
The Law on Legal Protection of Design (SaM Official Gazette, no. 61/04) has abandoned the traditional French division into models and samples and opted for a modern concept, and that is design, which integrates both the model and the sample. In such a legal arrangement, there is no requirement for the filing of separate applications for the model and for the sample.

Industrial designs are of a primarily aesthetic nature, therefore a design must not be dictated only, or essentially, by technical or functional characteristics of the product.

An industrial design has to be suitable for industrial application, so that it can be manufactured as a handicraft item or industrially. Otherwise, it is an artistic work which can be protected only by means of copyright.

3. To which products does industrial design apply?

To all those products which can be manufactured industrially or as handicraft items: watches, jewelry, fashion or other luxury items, industrial machinery and medical instruments, furniture, household and electrical appliances, vehicles, architectural structures, packaging of products, textile and wallpaper patterns, entertainment items, such as toys or items for pets.

The aesthetics, that is, the form of any product, is extremely important for its success on the market. In particular, with respect to consumer goods, a rule applies that the appearance and packaging of the product should be constantly researched and improved, as necessary elements for attracting potential consumers. It is necessary for such appearance to correspond to both the functionality and aesthetic demands of the user, as well as to the demands of modern art and technology.

4. How can an industrial design be protected?

The protection of industrial designs in our country is regulated by the Law on Legal Protection of Design (SaM Official Gazette, no. 104/2009) and the Decree on the Procedure for the Registration of Design Right (SaM Official Gazette, no. 43/2010) and it is obtained by filing an application for registration of a right to a design with the Intellectual Property Office, which decides, in an administrative procedure, after examining the absolute novelty of the deposited design, on the registration of the right to the design, or on the refusal of its registration, if all the statutory requirements have not been fulfilled. The decision is final and an administrative dispute may be instituted against it by means of a direct lawsuit filed with the Supreme Court of Serbia. The term of protection of the registered design is 5 years, and by paying renewal fees it can be extended for another 20 years.

5. How can industrial design be internationally protected?

The owner/holder of design right, that is, the applicant for the registration of design right can submit a request for international registration of a design through the Intellectual Property Office, to obtain protection on the basis of the Hague Agreement Concerning the International Registration of Industrial Designs in the countries which are party to that Agreement. A list of those countries can be found in the Information Circular on the Procedure for International Protection of Design.

6. Who can file an application for design registration?

The designer or his successor in title, i.e., employer in the cases provided for by the law. Foreign natural and legal persons enjoy the same rights regarding design protection in Republic of Serbia as domestic natural and legal persons, provided that this derives from international treaties or the reciprocity principle.

7. Is it mandatory to appoint an attorney for the filing of the application?

No, if the applicant is a national of Republic of Serbia. Such obligation pertains only to foreign natural persons and legal entities.

8. When does the procedure for design registration begin?

With the filing of the application for registration of a right to a design with the Intellectual Property Office by mail or by hand, in the Filing Office of the Intellectual Property Office. It is not possible to file an application by telefax or online. The Office will enter a duly filed application in the Registry of Applications for Registration of Design Rights, where the application will be assigned the so-called D- number, and receive an exact filing date. The filing date is at the same time the date of acquisition of a right of priority regarding the protection of the registered design.

9. What is a priority right?

It is a right which guarantees to the applicant that his application will enjoy priority with respect to the eligibility examination procedure for registration of design right relative to all other persons who have subsequently filed applications for the same appearance of a product. The right of priority is created on the day on which an application was duly filed with the Filing Office of the Intellectual Property Office.

10. Which elements should a duly filed application for design registration comprise?

A duly filed application for registration of design right consists of three elements, namely: a) a request for the registration of the design; b) a description of the design; c) a graphic presentation of the design. Attached to the application are: a duly executed power of attorney, if the application is filed through a representative; a certified copy of the application (a priority certificate) that the applicant has duly filed an application in a Paris Union member state, if the priority right is claimed; a receipt, that is, a certificate issued by the Serbian Chamber of Commerce that the applicant has exhibited the appearance of the subject matter of protection in an international exhibition or fair in the Republic of Serbia, and if he has exhibited in an international exhibition or fair in some other Paris Union member state, a certificate issued by the competent authority of that state; proof of the payment of fees.
a) A request for design right registration
  • What is a request for design right registration and where can the applicant obtain one?
  • A request for design right registration is the Form D-1 which is printed in the Office, and the applicant can obtain one in the Filing Office of the Intellectual Property Office personally, or he can order it by phone or by mail. The form of the request can also be downloaded from our web site.
  • What should be used for completing a request for design right registration?
  • A typewriter or a computer, in the Cyrillic or Latin alphabet. A handwritten request will be treated by the Office as not duly filed and will not be processed.
  • How many copies of a request should be filed?
  • Two copies. Both copies of a request for the registration of a right to design have to be identical.
  • What does a request for design right registration contain?
  • information on the business name and registered address of the applicant, for a legal entity, or the last name, first name and address of the applicant if he is a natural person;
  • information on a representative, if the application is filed through a representative;
  • a real and brief title of the subject matter of protection;
  • information on the designer (if he is not the one who is filing the application) or a declaration to the effect that the designer does not want to be named in the application;
  • egal grounds for the filing of the application if the designer is not the applicant;
  • information on the claimed priority right;
  • signature and seal of the applicant;
  • a remark to the effect that the publication of the registered design right is requested twelve months after the date on which a decision on the registration of the design right has been issued (deferred publication);
  • - information on the payment of fees.
b) A design description
  • The scope of the rights which are acquired to the registered design is determined by the contents of the description of a design, which is based on the submitted graphic presentation.
  • The description must be typed (on a typewriter or computer), terminologically unambiguous and comprehensible, on A4 paper (297x210mm) and clean. Only one side of a sheet of paper can be used. For more details on the methodology for drawing up a description, see Instructions on the Methodology for Preparing and Filing Applications for the Registration of Design Right.
c) A graphic presentation (a photograph or a drawing) of the design
  • A photograph or a drawing of a design should be filed in two copies, in the following manner: one copy is pasted to the Form D-1, while the other one is filed separately as an attachment. The photographs which are filed have to be of professional standard, without background, obtained from negatives or diapositives and must have straight angles. The subject matter of protection has to be presented in a neutral and plain background and must not have any shading.
  • The drawings that are filed have to be originals and of professional standard as well, produced with technical drawing instruments, and the subject matter of protection has to be presented in perspective (axonometrically). In the Instructions on the Methodology for Preparing and Filing Applications for the Registration of Design Right it is possible to find more on the photographs and drawings of the deposited shape.
d) A power of attorney
A power of attorney is an integral part of the application for registration of a model and/or sample only in those cases where the applicant files his application through an attorney (representative).
A power of attorney is a contract concluded between an applicant and an attorney, on the basis of which the applicant authorizes the attorney to file an application for registration of a model and/or sample in his name and for his account. In addition to the declaration on the authorization which has been issued, a power of attorney has to contain a reference to the number of the case file, the D-number, to which such authorization refers, it must be signed by the attorney and by the applicant and the original must be filed. A copy of a power of attorney will not be accepted by the Office. A copy of a power of attorney, however, may be taken into account in two cases:
  • if the applicant has several applications for registration of design right and if he is represented by the same attorney in all the applications, then it is sufficient to file the original of the power of attorney in one of those applications, while to other applications copies of the original may be attached. On each copy of the power of attorney it must be clearly indicated in which case file the original of the power of attorney can be found. It is done by indicating the D-number of the case file that contains the original of the power of attorney.
  • if the applicant issues to the attorney a general power of attorney which authorizes him to represent the applicant in all the transactions related to the protection of intellectual property, then a copy of such a power of attorney can be attached to the specific application for registration of a model and/or sample. A general power of attorney must be deposited with the Intellectual Property Office and on a copy of such a power of attorney, in a specific application for registration of design right, it must be clearly indicated under which number such deposit was made.

11. Can the appearance of a design be subsequently changed in the course of the design registration procedure?

The appearance of a design, that is, the photograph or drawing, may not be subsequently changed in the application in such a manner that they become substantially different in their scope and content from those defined by the description attached to the filed application.

12. What should the applicant do if the name of the applicant is changed, or his address, that is, his name and address, or if the right from the application is assigned to another natural or legal person, during the procedure for design registration?

He should inform the Office to that effect by using the appropriate form – a request for the recording of a change in the Registry of Deposits of Designs, which should be completed by a typewriter or on a computer. It is very important for the applicant for registration of design right to inform the Office in the course of the protection procedure, of any change in relation to his status or whereabouts (a change of the name, a change of the address, a change of the name and address), as well as of the assignment of rights from the application to another legal or natural person, so that the Office can inform him about the progress in the procedure for registration of design right. All changes can be listed in one request for the recording of a change in the Registry of Deposits of Designs, but they can also be stated in separate requests. With a duly completed request form, the applicant for registration of a model and/or sample should also submit proof of the payment of fees, and a duly executed power of attorney, if the request is filed through a representative. For each change related to the status or location of the entity, or concerning the assignment of rights from the application, a special fee is to be paid.

Accordingly, if the applicant for registration of a model and/or sample has changed just the name or just the address, he will have to pay a fee in the amount of RSD 450.

If the applicant has changed both the address and the name, he will also pay RSD 450 – rather than a double amount of the fee.
If the applicant assigns the right from the application to another person he will have to pay a fee in the amount of RSD 800.

13. Which applications are examined in an expedited procedure?

As a rule, applications are examined on a first-come, first-served basis, according to the dates of their filing with the Intellectual Property Office. Certain applications, however, may be examined in an expedited procedure, i.e., they can be fast-tracked, but only if the statutory requirements for that have been met.

  • Applications for international registration of designs are also examined in an expedited procedure. In such a case, the applicant has to pay an additional fee in the amount of RSD 1,500 for international registration of his design, with mandatory submission of a separate request for international registration.
  • Also examined in an expedited procedure are applications which are litigated or with respect to which an inspection supervision procedure has been initiated, at the request of the court or a competent body of the market inspection service. For a request for application examination in an expedited procedure, a special fee has to be paid in the amount of RSD 1,500, with mandatory submission of proof that the fee has been paid.

14. What are the stages and duration of the design registration procedure?

After the applicant has filed an application for registration of design right, staff working in the Filing Office of the Intellectual Property Office will examine whether such application contains all above listed essential elements, that is, they will examine whether the application was duly filed. If an element of the application is missing, such application will not be entered into the Registry of Applications for Registration of Design Rights. If an application contains all essential elements it will be entered into the Registry of Applications, where it will be assigned a D-number, and the filing date will be indicated. That date is at the same time the date of acquisition of the priority right regarding the deposited subject matter of protection. After that, an application which has been assigned a D-number is sent for examination to the Section for Design and Indications of Geographical Origin. Due to the existence of the priority right, a filed application for registration of design right is not processed until 6 months after the filing date. The priority right enables the applicant to file that application in other member states of the Paris Union, benefiting from the legal assumption that he filed the application in those other countries on the same date on which he filed it in his own country. After the processing of the application for registration of design right has commenced in the Section for Design and Indications of Geographical Origin, it is once again examined whether it was duly filed. If it turns out that the application was not duly filed, the Office will call on the applicant by means of the examination result report, to correct the application in a defined time limit (in most of the cases, this time limit is one month). The reasons for finding the application not duly filed are related mostly to the description or a graphic presentation of the subject matter of protection. For that reason, in the Instructions on the Methodology for Preparing and Filing Applications for the Registration of Design Right, we have provided examples of properly drafted descriptions and examples of duly made graphical presentations for both three-dimensional and two-dimensional designs. If the applicant fails to correct the application as the Office suggested doing in the set time limit, his application will be rejected. If the applicant corrects the application as the Office suggested doing in the set time limit, the Office will move on to examining the novelty and individual character of the deposited design. A deposited design will be considered new if no identical design has been made available to the public 12 months before the filing date of the application for the registration of that design, or if there is no previously filed application for the registration of an identical design. Designs are deemed to be identical if their features differ only in immaterial details. A design will be considered to have an individual character if the overall impression it produces on an informed user differs from the overall impression produced on such a user by any other design which has been made available to the public before the filing date of the application for registration or the date of the registered priority right of the opposed design. If the Office has established that there are reasons for which the application does not meet the requirements for registration of design right, it will notify the applicant in writing about the grounds for non-registration of design right and it will give him an appropriate time limit for a response. If the applicant fails to respond to the Office, or if he responds, but the Office decides to maintain its previously expressed opinion despite that, the application will be refused. In such a case, the applicant may institute administrative dispute proceedings by filing a lawsuit with the Supreme Court of Serbia, which will take a final decision on that issue. If the subject matter of protection meets the statutory requirements for registration of the design, the Office will call on the applicant to pay the prescribed fee for the registration of the design in the specified time limit (in most of the case, it is 10 days). If the applicant fails to pay the prescribed fee, or if he fails to pay it in the prescribed time limit, the Office will reject the application.

If the applicant pays the prescribed fee in the defined time limit the Office will enter the registered design right, together with the prescribed data, into the Registry of Designs, and the holder/owner of the design will be issued a certificate of registration for his design.

15. When has a design right been created and how long is its validity period?

A design right is acquired when an entry is made into the Registry of Designs and its duration is 25 years from the filing date, provided that the prescribed maintenance fees are paid.

16. How to renew the validity of a design right?

Industrial design protection may, with the submission of a request for the extension of the validity of the industrial design right on the form D-7 and with the obligatory submission of evidence of the paid prescribed fee, be extended for periods of 5 years and up to 25 years, counting from the filing date for the application recognition of the right to industrial design.