Abstract

Recent decisions in design cases in Europe (e.g. the Apple and Trunki cases) have undermined trust in the EU sui generis design protection. It is the identification of the object of protection that appears to be one of the most acute problems of the EU design protection. The chapter discusses this issue in the context of communication related to the subject matter of the design protection. The EU design regime relies solely on visual code. The recipients of a message (design claims) communicated by the sender (applicant, rightholder) at the very moment of emergence of the design protection are unspecified third parties. The system of claiming design in the EU adds further complications as it offers formal and informal protection and is consequently based on a manifold claim format. The mechanism of providing notice to the public by way of design claims does not work properly if codes of claiming and the process of their cognition and interpretation are unclear and blurred.