Designers: Do We Need Them?

Another one of those lacuna in European design law (yay!).

Under European design law the designer has a right to be cited:

Article 18 – Right of the designer to be cited
The designer shall have the right, in the same way as the applicant for or the holder of a registered Community design, to be cited as such before the Office and in the register. If the design is the result of teamwork, the citation of the team may replace the citation of the individual designers.

However, you can still file, and receive a certificate of registration for, a design where the designer is not cited. For example, the Manual for The Examination of Registered Community Designs states in section 5.2.4:

“The citation and the waiver or the absence of any indication regarding the designer(s) is merely optional and is not subject to examination”.

The question is, then: what could happen under national design law if designer information was omitted?

Having a quick look at the commentary the jury would appear to be out.  The Community Designs Handbook states in section 4-051 that one possible remedy is:

“an amendment at the behest of the designer”.

and that it is:

“safest to name the designer where possible”

with an eye to US design rights where the designer must be named.

Under UK Design Law a designer does not need to be named (in fact there is no mechanism to do this). So in the UK at least, as long as the ownership of the design is clear, there would appear to be no consequence if designer information was omitted. Whether this applies across other European countries though is unknown. If any Design Attorneys in other European Countries have any observations please feel free to add them to the comments.

[Of course: this discussion is independent of one on ownership, which is assumed to be taken care of here. This is a separate important factor that needs to be checked carefully.]

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