OFFICIAL GAZETTE OF ROMANIA, PART I, NO.876/20 DECEMBER 2007
REPUBLICATION
DESIGN LAW 1
NO. 129/1992
Art. 1. (1) The rights in designs shall be acquired and protected on the territory of Romania by the registration with the State Office for Inventions and Trademarks, hereinafter called OSIM, pursuant to the provisions of the present Law.
Art. 2 - Within the meaning of this Law, the terms or expressions below are defined as follows:
a) the Hague Agreement - the agreement concerning the international industrial design deposit, adopted at the Hague on November 6, 1925, with the subsequent amendments and completions, to which Romania adhered through the Law no. 44/1992;
b) author - the natural person or group of natural persons, constituted according to an agreement, that created the design;
c) certificate of registration - the title of protection granted by OSIM for the registered designs;
1 Republished within the meaning of Art. IV of the Law no. 280/2007 for amending and completing the Industrial Design Law no.129/1992 published in the Official Gazette of Romania no. 729 of 26.10.2007, the texts being given a new numbering.
Law no. 129/1992 was also republished in the Official Gazette of Romania, Part I, no. 193 of 26 March 2003 and it has also been modified by the Emergency Government Ordinance no. 190/2005 for taking some measures necessary in the European integration process, published in the Official Gazette of Romania, Part I, no. 1179 of 28 December 2005, approved with the corresponding amendments and completions by the Law no. 332/2006, published in the Official Gazette of Romania, Part I, no.629 of 20 July 2006.
d) design - the appearance of a product or of a part thereof, in two or three dimensions, resulting from the combination of the main features, particularly lines, outlines, colours, shape, texture and/or materials of the product itself and/or its ornamentation;
e) Community design - the design protected under the Regulation no. 6/2002/EC, published in the Official Journal of the European Communities no. L3 of 5 January 2002 by the Office for the Harmonization in the Internal Market, with effects throughout the territory of the European Communities;
f) immaterial details - those graphic or shape elements that do not determine the individual character of the design;
g) registration - the way of acquiring the rights on designs under this Law or the international conventions to which Romania is a party;
h) professional representative - the person who practises the profession of industrial property attorney under the conditions provided for by the law and who may represent an interested party in the proceedings before OSIM;
I) product - any article produced through an industrial or handicraft process containing inter alia elements designed to be assembled in a complex product, packages, forms of presentation, arrangements, graphic symbols, typographic symbols; the computer programs shall not be deemed as a product;
j) complex product -a product comprising multiple elements replaceable in a manner which allows disassembly and reassembly of the product;
k) applicant - the natural person or legal entity who requests for the registration and the issuance of a certificate of registration of a design with OSIM;
l) holder-the natural person or legal entity having the rights conferred by the registration of the design and for which the certificate of registration is issued.
Art. 3. - (1) The right to be granted the certificate of registration shall vest in the author of the design or his successor in title for the independently created designs.
Art. 4. - In the absence of proof to the contrary, the applicant shall be deemed to have the right to be granted the certificate of registration of the design.
Art. 5 - (1) The rights in a design acquired under this Law shall not prejudice the rights in unregistered designs, trademarks and other distinctive signs, patents and utility models, typographic symbols, topographies of semiconductor products.
(2) The protection of the design registered under this Law shall not exclude or prejudice the protection thereof by copyright.
Art. 6 - (1) The object of the application may be registered to the extent in which it constitutes a design, within the meaning of Art. 2, is new and has individual character.
a) once incorporated into the complex product, the component part remains visible during the normal use of the product; normal use means the use by the end user, excluding the maintenance and repairs;
b) the characteristics of the visible component part characteristics fulfil themselves the conditions concerning the novelty and the individual character.
Art. 7 - (1) Within the meaning of Art. 6, a design is deemed to have been rendered available to the public, if it has been published or disclosed in any other way, exhibited, employed in the commerce, except for the case where such actions could not reasonably become known in the normal course of the activity of the circles specialized in the sector concerned within the European Community, prior to the date of filing the application for registration, or prior to the priority date, if a priority has been claimed. However, a design shall not be deemed to have been rendered available to the public, for the sole reason that it has been disclosed to a third party in explicit or implicit confidentiality conditions.
Art. 9 - Designs contrary to public order and morality shall be excluded from the protection.
Art. 10 - (1) The application for registration of a design shall contain the following: a) request for the registration of the design;
b) applicant’s identification data;
c) number of designs for which protection is claimed;
d) indication of the products which incorporate the design, if appropriate;
e) description of the novel characteristic elements of the design for which protection is claimed, as they appear in the filed graphic representations;
f) the authors’ names or a statement on the applicant’s responsibility that the authors have waived their right of being mentioned in the application and/or in the design publications;
g) graphic representations of the design in three copies.
(2) The application for registration may further contain, if appropriate, other elements which do not represent a condition for the regular deposit date: a) identification data of the professional representative, if designated in the application
for registration;
b) priority documents, if one of the priorities provided for in Art. 16 and 17 is claimed;
c) request for deferment of publication;
d) power of attorney for representation before OSIM;
e) statement indicating the information which, according to the applicant’s knowledge,
allows to prove the fulfilment of the conditions to grant the protection for the design whose registration is claimed.
Art. 11 - (1) The graphic representations shall completely render the design which is the object of the application for registration, so as to point out its aesthetic features. Otherwise, the application for registration shall be rejected. The graphic representations shall be of sufficient quality to emphasize the design details and make its publication possible.
Art. 15 - The regular national deposit shall ensure the applicant a right of priority, starting on the date of constituting the deposit, in relation to any subsequent deposit concerning the same design.
Art. 16 - (1) The natural persons or legal entities of the States party to the conventions to which Romania is also a party shall benefit by a six-month right of priority starting on the date of the first deposit, if they apply for protection in respect of the same design within that six-month period of time.
(2) A six-month right of priority based on the utility model deposit shall be recognized.
Art. 17 - Where certain goods and services have been exhibited by the applicant within an official or officially recognized international exhibition, within the meaning of the Convention on international exhibitions signed in Paris on 22 November 1928 and ratified by Romania through the Law no. 246/1930, with the subsequent amendments and completions, the exhibition being organized on the territory of Romania or in a Member State of Paris Convention for the protection of industrial property, in the form revised in Stockholm on 14 July 1967, the applicant shall enjoy a priority right as from the date of presenting the said good within the exhibition, provided that an application for design registration in respect of said products has been filed with OSIM within six months from the date of presenting the good in the exhibition.
Art. 18. - The priorities provided for in Articles 16 and 17 shall be recognized, if claimed at the time of filing the application, and if attested by priority documents, within three months from the date of filing the application.
Art. 19. - (1) The applications for registration filed with OSIM shall be subjected to a preliminary examination that shall assess:
a) compliance with the conditions of form of the application, provided for in Art. 10 paragraph (1);
b) compliance with the conditions stipulated for the graphic representations, provided for in Art. 11;
c) compliance with the conditions stipulated for the other documents or acts, enclosed with the application provided for in Art. 10 paragraph (2);
d) payment of the fees in the amount and within the time limits stipulated by the law.
(5) The settling of opposition can be deferred when:
a) it is based on a design application for which a decision has not been made;
b) the opposing design is the subject of an action for annulment, prior to the final case
disposition.
Art. 22 - (1) Applications for the registration of designs shall be examined by the Designs Examination Board. Within twelve months from the date of publication of the application, the Board decides to accept or to refuse registration of the design, as the case may be, or may ascertain the renouncement or the withdrawal of the application. The Board shall take the decision to grant the certificate of registration on the basis of an examination report and according to the provisions of Art. 2, 6 and 7.
(2) Registration of designs shall be made in the National Register of Designs and published in the Official Industrial Property Bulletin of OSIM.
(3) The application for the registration of a design shall be refused if:
a) the provisions of the Art. 2, 6 and 7 are not observed;
b) the subject-matter of the application is comprised in the provisions of the Art. 8 and
9;
c) it incorporates, without the holder’s permission, a work protected by the Law No. 8/1996 on the Copyright and the Related Rights, including the subsequent amendments and completions, or any other protected industrial property rights;
d) it represents an improper use of any of the items mentioned in the list comprised in the Article 6 ter of the Paris Convention for the Protection of the Industrial Property, in the form revised in Stockholm, on 14 July 1967, to which Romania has adhered by the Decree No. 1.177/1968 or an abusive use of the emblems and escutcheons, others than those mentioned under the Article 6 ter of the Convention.
e) the applicant has not proved to be the person entitled to the registration of the design, within the meaning of Art.3;
f) the design is in conflict with a prior design which has been made available to the public after the filing date of the application for registration or, if a priority is claimed, after the priority date, and which is protected from a date prior to said date by the registration or an application for registration of a Community design, or by a registration of a design or an application for protection in Romania;
g) the design uses a distinctive sign which confers to its holder the right to prohibit such a use;
Art. 23 - When design registration, renewal or recordal of a change in the Register of Designs was obviously made by mistake, OSIM may revoke the registration, renewal or recordal of change within three months, counting from the date of registration or recordal. The substantiated decision of revocation shall be communicated to the interested persons within 30 days.
Art. 24 - (1) Decisions regarding the applications for the registration of the design may be appealed against, in writing and on valid grounds, with OSIM, within 30 days from communication.
Art. 26 - All decisions issued by OSIM shall be substantiated.
Art. 27 - The issuance of the certificates of registration of the designs shall be made by OSIM on the basis of the final decisions of acceptance of registration, within 30 days from the date on which the decision of acceptance became final and irrevocable.
Art. 28 - (1) The procedures regarding the applications for the registration of designs and the certificates of registration shall be subject to the payment of fees, in the amount and within the time limits provided for according to the law. The fees shall be paid into the account of OSIM.
Art. 29 - (1) The applicant or the holder of the certificate of registration, who failed to observe a time limit regarding the procedures before OSIM for force majeure reasons, shall be granted an extension of the time limit if a substantiated request is presented within sixty days from the cessation of the reasons that prevented him from acting, but not later than one year after the expiry of the non-observed time limit.
(2) The provisions of the paragraph (1) shall not apply in the following situations:
a) priority claiming according to Art. 16-18;
b) payment of the registration and publication fees;
c) opposition filing according to Art. 21;
d) appeals filing according to Art. 24.
(3) The request for extension of the time limit shall be accompanied by the proof of payment of the legal fee.
Art. 30 - Throughout the period of validity of design registration, the holder has the exclusive right to use the design and to prevent any third party not having his consent from using it. The right holder has the right to prohibit third parties to perform, without his permission, the following acts: reproducing, manufacturing, putting on the market or offering for sale, importing, exporting or using a product having the design incorporated or applied thereto or storing such a product for the above mentioned purposes.
Art. 31 - (1) The scope of protection shall be determined by the graphic representations of the registered designs.
(2) The protection granted to a design on the basis of the present Law shall extend to any design that does not produce a different overall visual impression on an informed user.
(3) The degree of freedom of the author in making the design shall be considered in assessing the scope of protection.
Art. 32 - The rights conferred by Art. 30 shall not apply to:
a) acts performed exclusively in personal, non-commercial, experimental, research or educational purposes, on the condition that these acts are not detrimental to the normal exploitation of the designs and that they mention the source;
b) activities of reproducing in the field of research or education, for making citations or teaching, provided that such activities are compatible with fair trade practice and do not unduly prejudice the normal exploitation of the design, and that mention is made of the source;
c) equipments existing on the sea or air transportation vehicles registered in another country, when these vehicles temporarily enter the territory of Romania, or importing accessories and spare parts for the purpose of repairing such vehicles or executing repairs in such vehicles;
d) using or taking effective and serious measures for the use of the designs by third parties, within the period from the forfeiture of the holder’s rights to the certificate revalidation;
e) use of the designs in good faith within the period from the date of publication of the forfeiture of the holder’s rights to the date of publication of the reinstated right.
Art. 33 - The rights arising from the registration of the design shall not be exercised in case of putting on the Community market the products in which the protected designs are incorporated or to which they are applied when said products have been previously put on the market by the holder of the certificate of registration or with his consent.
Art. 34 - (1) Starting on the date of publication of the application, the natural person or legal entity entitled to be granted the certificate of registration shall temporarily enjoy the same rights conferred according to the provisions of Art. 30, until the issuance of the certificate of registration, except for the cases when the application has been rejected or withdrawn.
Art. 36 - The exclusive right of exploitation arising from the design registration shall cease in the following situations: a) at the expiry of the period of validity; b) by cancellation of the certificate of registration; c) by forfeiture of the holder’s rights; d) by renunciation by the holder of the certificate of registration.
Art. 37 - The holders of the certificates of registration of designs may affix the D sign, namely the capital “D” inscribed inside a circle and accompanied by the holder’s name or by the number of the certificate, on the products.
Art. 38 - (1) The right to be granted the certificate of registration of the design, the rights arising from the application for registration of the design, as well as the rights arising from the registration are transferable wholly or in part.
(2) The transfer may be made by succession, assignment or licence.
Art. 40 -International applications under the Hague Agreement shall be filed with the World Industrial Property Organization, directly or through OSIM.
Art. 41 - (1) The author is entitled to have his name, first name and position mentioned in the issued certificate of registration, as well as in any other documents or publications concerning the design.
Art. 43 - Litigations concerning the status of author of the design, the status of holder of the certificate of registration, those concerning the patrimonial rights deriving from the assignment or licence contracts are the competence of the judicial instances, according to the Civil Law.
Art. 44 - Community designs shall enjoy protection on the territory of Romania under the Council Regulation (EC) no.6/2002 on Community designs, published in the Official Journal of European Communities no. L 3 of 5 January 2002.
Art. 45 - Community design applications may be filed directly with the Office for Harmonization in the Internal Market or through OSIM.
Art. 46 - When a Community design application is filed with OSIM under Art. 35 of the Council Regulation (EC) no.6/2002 on Community designs, OSIM shall write on the application the date of receiving and, without examination, shall forward the application to the Community Office within two weeks, subject to the payment of a fee in an amount of 70 lei.
Art. 47 - Litigations on Community designs, for which the Council Regulation (EC) no.6/2002 on Community designs assigns the competence to the Community design courts, under Art. 80, paragraph (1) of said Regulations, shall be under the jurisdiction of the Law Court of Bucharest which solves first instance causes.
Art. 48 - OSIM is the specialized governmental body, with sole authority on the territory of Romania, for ensuring the protection of designs.
Art. 49 - OSIM shall have the following attributions in the field of design protection:
(c) conducting, upon request, documentary search on published designs and mediation services;
(d) conducting relations with equivalent governmental organizations and with
specialized international organizations a member of which is Romania;
Art. 50. - The unlawful assumption, in any way, of the status of author of a design shall constitute an offence and shall be punished by imprisonment for six months to two years or by a fine of 1500 to 3000 lei.
Art. 51 - In case that a decision of the law court established that another person than the one mentioned in the application for registration or in the certificate of registration is entitled to be granted the certificate of registration, OSIM shall issue the certificate of registration to the entitled person and shall publish the change of the holder.
Art. 52 - (1) The unlawful performance of any act provided for in Art. 30 after design registration shall constitute the offence of counterfeiting and shall be punishable by imprisonment for six months to five years.
(4) For the caused prejudices, the holder shall be entitled to damages according to the civil law, and he may apply to the competent law court to order the seizure, or, as the case may be, the destruction of the counterfeited products; these provisions shall also apply to materials and equipments that were directly used for committing the offence of counterfeiting.
Art. 53 - (1) The holder of a registered design may ask the law court:
a) to order precautionary measures, when there is a risk of infringement of the rights in a registered design and if this infringement is likely to cause an irreparable prejudice or if there is a risk of destruction of evidence;
b) to order, immediately after the customs clearance procedures, measures for ceasing the infringement of the rights in a design committed by a third party when putting on the market imported goods that imply a prejudice to these rights.
Art. 54 - The customs authorities may order, either ex officio or upon request by the holder of the registered design, the suspension of the customs clearance procedures on the importation of the goods, in the cases referred to in Art. 53, until the pronouncement of the decision of the law court.
Art. 55 - The certificates of registration of designs in force represent intangible assets and may be registered in the patrimony of the holder as a legal person.
Art. 56 - (1) At the request of the law court, OSIM is obliged to forward the necessary documents, papers and information for the judgment of the cause vested in it.
(2) The summoning of right holders is compulsory in any litigation concerning designs.
This Law2 transposes the provisions of the Directive 98/71/EC on the legal protection of Community designs, published in the Official Journal of European Communities No. L 289 of 28 October 1998, and creates the legal framework for the direct application of the Council Regulation (EC) No. 6/2002 on Community Designs, published in the Official Journal of European Communities No. L 3/5 January 2002, as from the date of Romania’s accession to the European Union.
NOTE:
We reproduce below Art. II and III of the Law 280/2007 which are not incorporated in the republished text of the Law No. 129/1992 and which still apply as specific provisions of the Law No. 280/2007.
Article II - The design applications in respect of which a decision has not been taken yet, shall be solved according to the provisions of this Law.
Article III - (1) This Law shall come into force 30 days after its publication in the Official Gazette of Romania, Part I.
(2) Within the time limit under paragraph (1), the Government shall adopt new Regulations for implementing the republished Design Law no. 129/1992.
2 The mention concerning the transposing of the provisions of Community norms is comprised within the Law No.280/2007 for amending and completing the Law 129/1992.