DISCLOSURE OF DESIGNS ON THE INTERNET Case Law Laboratory 12 June 2017 Declan Finlay S.N.E International Cooperation and Legal Affairs Department ECP4: Convergence analysis project – 2nd CYCLE

The European Union Trade Mark Regulation (EUTMR) Case Law Laboratory 12 June 2017 The European Union Trade Mark Regulation (EUTMR)   The task of promoting Convergence of Practices & Tools CP10 Disclosure of Designs on the Internet ECP4: Convergence analysis project – 2nd CYCLE

The purpose of convergence is to provide a consistency of approach, Case Law Laboratory 12 June 2017 The purpose of convergence is to provide a consistency of approach, greater clarity legal certainty in the offices’ practice across the EU for users doing business in IP and therefore be beneficial for users. Article 6 of the Directive states “a design shall be, deemed to have been made available to the public if it has been published following registration or otherwise, or exhibited, used in trade or otherwise disclosed, except where these events could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned(…), operating within the Community, before the date of filing of the application for registration or, if priority is claimed the date of priority.”   - Prior art includes disclosures made on the internet. ECP4: Convergence analysis project – 2nd CYCLE

Following analysis and consideration by the ECP4 Working Group, a questionnaire was drafted and sent to the EU IP Offices who were asked to indicate: The legal instruments or administrative instructions Relevant case law on this topic Assessment of evidence of earlier designs at any stage and Any specific provisions when the disclosure has been made on the internet Accepted ways of presenting information obtained on the internet and Aspects that IPOs consider when assessing disclosure on the internet. The effective date of disclosure Other factors taken into account for establishing a reliable date of disclosure (internet archiving services, indexing dates, etc.); and Whether they have any software or forensic tools for retrieving the date of disclosure. The results of which were quite interesting

* When a password or login is required for accessing the content: 7 Consider information accessible 6 Consider information not accessible When payment is required for accessing the content: 7 Consider information accessible 6 Consider information not accessible When the information is disclosed in a webpage with a bar of confidentiality (in-house or intranet systems): 2 Consider information accessible 12 Consider information not accessible *Of the offices who answered these questions

Are the panelists surprised by the results I highlighted? Do the panellists agree with these results? In relation to evidence of disclosure, reliability of the so-called “way-back machine?