Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs

An application for a declaration of invalidity shall not be admissible if an application relating to the same subject matter and cause of action, and involving the same parties, has been adjudicated on its merits, either by the Office or by an EU design court as referred to in Article 80, and the decision of the Office or the EU design court on such application has become final.

If the Office finds that the application for a declaration of invalidity is admissible, the Office shall examine whether the grounds for invalidity referred to in Article 25 prejudice the maintenance of the registered EU design.

When examining the application for a declaration of invalidity, the Office shall invite the parties, as often as necessary, to file observations, within a period to be fixed by the Office, on communications from the other parties or issued by the Office itself.

If the holder of the registered EU design so requests, an applicant for a declaration of invalidity invoking an earlier EU or national trade mark as a distinctive sign within the meaning of Article 25(1), point (e), of this Regulation shall furnish proof of genuine use of such mark in accordance with Article 64(2) and (3) of Regulation (EU) 2017/1001 and the rules adopted pursuant to Article 53a of this Regulation.

A record of the Office’s decision on the application for a declaration of invalidity shall be entered in the Register once that decision has become final.

The Office may invite the parties to make a friendly settlement.

In the event of an application for a declaration of invalidity of a registered  EU design being filed, and as long as no final decision has been taken by the Office, any third party who proves that proceedings for infringement of the same design have been instituted against him may be joined as a party in the invalidity proceedings on request submitted within three months of the date on which the infringement proceedings were instituted.

The request to be joined as a party shall be filed in a written reasoned statement. It shall not be deemed to have been filed until the invalidity fee, referred to in Article 52(2), has been paid. Thereafter the request shall, subject to any exceptions laid down in the implementing regulation, be treated as an application for a declaration of invalidity.

An appeal shall lie from the decisions of the Office referred to in Article 102, points (a), (b) and (c).

Articles 66 to 72 of Regulation (EU) 2017/1001 shall apply to appeals dealt with by the Boards of Appeal under this Regulation, unless otherwise provided for in this Regulation.

Decisions of the Office shall state the reasons on which they are based. They shall be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments. Where oral proceedings are held before the Office, the decision may be given orally. Subsequently, the decision shall be notified in writing to the parties.

Any decision, communication or notice from the Office shall indicate the department or division of the Office as well as the name or the names of the official or officials responsible. They shall be signed by that official or those officials, or, instead of a signature, carry a printed or stamped seal of the Office. The Executive Director may determine that other means of identifying the department or division of the Office and the name of the official or officials responsible or an identification other than a seal may be used where decisions, communications or notices are transmitted by any technical means of communication.

Decisions of the Office which are subject to appeal shall be accompanied by a written communication indicating that any notice of appeal is to be filed in writing at the Office within two months of the date of notification of the decision in question. Any such communication shall also draw the attention of the parties to the provisions laid down in Articles 66, 67, 68, 71 and 72 of Regulation (EU) 2017/1001, which also apply to appeals under this Regulation pursuant to Article 55(2) of this Regulation. The parties shall not plead any failure on the part of the Office to communicate the availability of appeal proceedings.

In proceedings before it, the Office shall examine the facts of its own motion. However, in proceedings relating to a declaration of invalidity, the Office shall be restricted in this examination to the grounds, facts, evidence and arguments provided by the parties and the relief sought.

The Office may disregard facts or evidence which are not submitted in due time by the parties concerned.

If the Office considers that oral proceedings would be expedient, they shall be held either at the instance of the Office or at the request of any party to the proceedings.

Oral proceedings before the examiners and the department in charge of the Register shall not be public.

Oral proceedings, including delivery of the decision, before the Invalidity Divisions and the Boards of Appeal shall be public, unless the department before which the proceedings are taking place decides otherwise in cases where admission of the public could have serious and unjustified disadvantages, in particular for a party to the proceedings.

In any proceedings before the Office the means of giving or obtaining evidence shall include the following:

The relevant department of the Office may commission one of its members to examine the evidence adduced.

If the Office considers it necessary for a party, witness or expert to give evidence orally, it shall issue a summons to the person concerned to appear before it. The period of notice provided in such summons shall be at least one month, unless the party, witness or expert agrees to a shorter period.

The parties shall be informed of the hearing of a witness or expert before the Office. They shall have the right to be present and to put questions to the witness or expert.

The Executive Director shall determine the amounts of expenses to be paid, including advances, as regards the costs of taking of evidence as referred to in this Article.

The Office shall, of its own motion, notify those concerned of decisions and summonses and of any notice or other communication from which a time limit is reckoned, or of which those concerned are to be notified under other provisions of this Regulation or of acts adopted pursuant to this Regulation, or of which notification has been ordered by the Executive Director.

Notification shall be effected by electronic means. The details regarding electronic means shall be determined by the Executive Director.

Where notification has proved to be impossible by the Office, notification shall be effected by public notice. The Executive Director shall determine how the public notice is to be given and shall fix the beginning of the one-month period on the expiry of which the document shall be deemed to have been notified.

Time limits shall be laid down in terms of full years, months, weeks or days. Calculation shall start on the day following the day on which the relevant event occurred. The duration of time limits shall be no less than one month and no more than six months, unless otherwise set out in this Regulation or in any acts adopted pursuant to this Regulation.

The Executive Director shall determine, before the commencement of each calendar year, the days on which the Office is not open for receipt of documents.

The Executive Director shall determine the duration of the period of interruption in the case of an actual interruption of the Office’s connection to authorised electronic means of communication.

If an exceptional occurrence, such as a natural disaster or strike, interrupts or interferes with proper communication from the parties to the proceedings to the Office or vice-versa, the Executive Director may determine that, for parties to the proceedings that have their residence or registered office in the geographical area affected by the exceptional occurrence, or who have appointed a representative with a place of business in that area, all time limits that otherwise would expire on or after the date of commencement of such occurrence shall be extended until a certain date. When determining that date, the Executive Director shall assess when the exceptional occurrence comes to an end. If the occurrence affects the seat of the Office, such determination of the Executive Director shall specify that it applies in respect of all parties to the proceedings.

The Office shall correct any linguistic errors or errors of transcription and manifest oversights in its decisions, errors in registering an EU design or errors in publishing the registration, of its own motion or at the request of a party.

Where the correction of errors in the registration of an EU design or the publication of the registration is requested by the holder, Article 50g shall apply mutatis mutandis.

Corrections of errors in the registration of an EU design and in the publication of the registration shall be published by the Office.

Where the Office has made an entry in the Register or taken a decision which contains an obvious error attributable to the Office, it shall ensure that the entry is cancelled or the decision is revoked. Where there is only one party to the proceedings and the entry or the act affects that party’s rights, cancellation or revocation shall be determined even if the error was not evident to the party.

Cancellation or revocation as referred to in paragraph 1 shall be determined, of its own motion or at the request of one of the parties to the proceedings, by the department which made the entry or took the decision. The cancellation of the entry in the Register or the revocation of the decision shall be effected within one year of the date on which the entry was made or the decision was taken, after consultation with the parties to the proceedings and any proprietor of rights to the EU design in question that are entered in the Register. The Office shall keep records of any such cancellation or revocation.

This Article shall be without prejudice to the right of the parties to submit an appeal under Articles 55 and 55a or to the possibility of correcting errors and manifest oversights under Article 66g. Where an appeal has been filed against a decision of the Office containing an error, the appeal proceedings shall become devoid of purpose upon revocation by the Office of its decision pursuant to paragraph 1 of this Article. In the latter case, the appeal fee shall be reimbursed to the appellant.

The applicant for or holder of a registered  EU design or any other party to proceedings before the Office who, in spite of all due care required by the circumstances having been taken, was unable to observe a time limit vis-à-vis the Office shall, upon application, have his rights re-established if the non-observance in question has the direct consequence, by virtue of the provisions of this Regulation, of causing the loss of any rights or means of redress.

The applicant shall file the application in writing within two months of the removal of the cause of non-observance of the time limit. The omitted act shall be completed within that period. The application shall only be admissible within the year immediately following the expiry of the unobserved time limit. In the case of non-submission of the request for renewal of registration or of non-payment of a renewal fee, the further period of six months following the expiry of registration provided for in Article 50d(3) shall not be deducted from the period of one year.

The application shall state the grounds on which it is based and shall set out the facts on which it relies. It shall not be deemed to be filed until the fee for the re-establishment of rights has been paid. If restitutio in integrum is granted, the fee shall be reimbursed.

The department competent to decide on the omitted act shall decide upon the application.

Non-observance of the time limits laid down in paragraph 2 of this Article and in Article 67a shall not give rise to re-establishment of rights as referred to in paragraph 1 of this Article.

Where the applicant for or holder of a registered  EU design has his rights re-established, he may not invoke his rights vis-à-vis a third party who, in good faith, in the course of the period between the loss of rights in the application for or registration of the registered  EU design and publication of the mention of re-establishment of those rights, has put on the market products in which a design included within the scope of protection of the registered  EU design is incorporated or to which it is applied.

A third party who may avail himself of the provisions of paragraph 6 may bring third party proceedings against the decision re-establishing the rights of the applicant for or holder of the registered  EU design within a period of two months as from the date of publication of the mention of re-establishment of those rights.

Nothing in this Article shall limit the right of a Member State to grant restitutio in integrum in respect of time limits provided for in this Regulation and to be complied with vis-à-vis the authorities of such State.

An applicant for, or a holder of, a registered EU design or any other party to proceedings before the Office who has not observed a time limit vis-à-vis the Office may, upon request, obtain the continuation of proceedings, provided that at the time the request is made the omitted act has been carried out. The request for continuation of proceedings shall be admissible only if it is submitted within two months of the expiry of the unobserved time limit. The request shall not be deemed to have been filed until the fee for continuation of the proceedings has been paid.

Continuation of proceedings shall not be granted in the event of non-observance of the time limits laid down in:

The department competent to decide on the omitted act shall decide upon the request for continuation.

If the Office accepts the request for continuation, the consequences of having failed to observe the time limit shall be deemed not to have occurred. If a decision has been taken between the expiry of that time limit and the request for the continuation of proceedings, the department competent to decide on the omitted act shall review the decision and, where completion of the omitted act itself is sufficient, take a different decision. If, following the review, the Office concludes that the original decision does not require to be altered, it shall confirm that decision in writing.

If the Office rejects the request for continuation, the fee shall be refunded.

Proceedings before the Office shall be interrupted:

Proceedings before the Office may be resumed as soon as the identity of the person authorised to continue them has been established or the Office has exhausted all reasonable attempts to establish the identity of such person.

Rights of the Office to the payment of fees shall lapse after four years from the end of the calendar year in which the fee fell due.

Rights against the Office for the refunding of fees or sums of money paid in excess of a fee shall lapse after four years from the end of the calendar year in which the right arose.

The periods laid down in paragraphs 1 and 2 shall be interrupted, in the case covered by paragraph 1, by a request for payment of the fee and, in the case covered by paragraph 2, by a reasoned claim in writing. On interruption it shall begin again immediately and shall end at the latest six years after the end of the year in which it originally began, unless in the meantime judicial proceedings to enforce the right have begun. In this case the period shall end at the earliest one year after the judgment has acquired the authority of a final decision.

The losing party in proceedings for a declaration of invalidity of a registered EU design or appeal proceedings shall bear the fees paid by the other party for the application for a declaration of invalidity and for appeal. The losing party shall also bear the costs incurred by the other party that are essential to the proceedings, including travel and subsistence and the remuneration of a representative within the meaning of Article 78(1), within the maximum rates set for each category of costs in the implementing act adopted pursuant to Article 70a.

Where each party succeeds on some and fails on other heads, or where reasons of equity so dictate, the Invalidity Division or Board of Appeal shall decide on an apportionment of costs different from that set out in paragraph 1.

A party who terminates the proceedings by withdrawing the EU design application, the application for a declaration of invalidity or the appeal, by not renewing the registration of the EU design, or by surrendering the registered EU design, shall bear the fees and the costs incurred by the other party as set out in paragraphs 1 and 2.

Where a case does not proceed to judgment, the costs shall be at the discretion of the Invalidity Division or Board of Appeal.

Where the parties conclude before the Invalidity Division or Board of Appeal a settlement of costs differing from that provided for in paragraphs 1 to 4, the body concerned shall take note of that agreement.

The Invalidity Division or Board of Appeal shall fix of its own motion the amount of the costs to be paid pursuant to paragraphs 1 to 5 of this Article when the costs to be paid are limited to the fees paid to the Office and the representation costs. In all other cases, the registry of the Board of Appeal or Invalidity Division shall fix, upon request, the amount of the costs to be paid. The request shall be admissible only for a period of two months following the date on which the decision for which a request was made for the costs to be fixed becomes final and shall be accompanied by a bill and supporting evidence. For the costs of representation pursuant to Article 78(1), an assurance by the representative that the costs have been incurred shall be sufficient. For other costs, it shall be sufficient if their plausibility is established.

Decisions on the fixing of costs adopted in accordance with paragraph 6 shall state the reasons on which they are based and may be reviewed by the Invalidity Division or Board of Appeal following a request filed within one month of the date of notification of the decision. It shall not be deemed to be filed until the fee for reviewing the amount of the costs has been paid. The Invalidity Division or the Board of Appeal, as the case may be, shall take a decision on the request for a review of the decision on the fixing of costs without oral proceedings.

Any final decision of the Office fixing the amount of costs shall be enforceable.

Enforcement shall be governed by the rules of civil procedure in force in the Member State in the territory of which it is carried out. Each Member State shall designate a single authority responsible for verifying the authenticity of the decision referred to in paragraph 1 and shall communicate its contact details to the Office, the Court of Justice and the Commission. The order for enforcement shall be appended to the decision by that authority, with the verification of the authenticity of the decision as the sole formality.

When these formalities have been completed on application by the party concerned, the latter may proceed to enforcement in accordance with the national law, by bringing the matter directly before the competent authority.

Enforcement may be suspended only by a decision of the Court of Justice. However, the courts of the Member State concerned shall have jurisdiction over complaints that enforcement is being carried out in an irregular manner.

The Office shall keep a Register of registered EU designs which it shall keep up to date.

The Register shall contain the following entries relating to EU design registrations:

The Register shall also contain the following entries, each accompanied by the date of their recording:

The Executive Director may determine that items other than those referred to in paragraphs 2 and 3 are to be entered in the Register.

The Register may be maintained in electronic form. The Office shall collect, organise, make public and store the items referred to in paragraphs 1, 2 and 3, including any personal data, for the purposes laid down in paragraph 8. The Office shall keep the Register easily accessible for public inspection.

The holder of a registered EU design shall be notified of any change in the Register.

The Office shall, where access to the Register is not restricted pursuant to Article 74(5), provide, by electronic means, certified or uncertified extracts from the Register upon request.

The processing of the data concerning the entries set out in paragraphs 2 and 3, including any personal data, shall take place for the purposes of:

All the data, including personal data, concerning the entries set out in paragraphs 2 and 3 of this Article shall be considered to be of public interest and may be accessed by any third party except to the extent that Article 50(2) provides otherwise. The entries in the Register shall be kept for an indefinite period.

In addition to the obligation to keep a Register as set out in Article 72, the Office shall collect and store in an electronic database all the particulars provided by holders or any other party to the proceedings pursuant to this Regulation or acts adopted pursuant to it.

The electronic database may include personal data, beyond those included in the Register pursuant to Article 72, to the extent that such data are required by this Regulation or by acts adopted pursuant to it. The collection, storage and processing of personal data shall serve the purposes of:

The Executive Director shall determine the conditions of access to the database and the manner in which the contents, other than the personal data referred to in paragraph 2 of this Article but including the data listed in Article 72, may be made available.

Access to the personal data referred to in paragraph 2 shall be restricted and such data shall not be made publicly available unless the party concerned has expressly consented.

All data shall be kept indefinitely. However, the party concerned may request the removal of any personal data from the database after 18 months from the expiry of the registered EU design or the closure of the relevant inter partes procedure. The party concerned shall have the right to obtain the correction of inaccurate or erroneous data at any time.

The decisions of the Office regarding registered EU designs shall be made available online for the information and consultation of the general public. Any party to the proceedings that led to the adoption of the decision may request the removal of any personal data included in the decision.

The Office may provide online access to judgments of national and Union courts related to its tasks in order to raise public awareness of intellectual property matters and promote convergence of practices. The Office shall respect the conditions of the initial publication with regard to personal data.

The Office shall periodically publish:

The European Union Designs Bulletin shall be published in a manner and at a frequency to be determined by the Executive Director.

The Official Journal of the Office shall be published in the languages of the Office. However, the Executive Director may determine that certain items are to be published in the Official Journal of the Office in the official languages of the Union.

The files relating to applications for registered  EU designs which have not yet been published or the files relating to registered  EU designs which are subject to deferment of publication in accordance with Article 50 or which, being subject to such deferment, have been surrendered before or on the expiry of that period, shall not be made available for inspection without the consent of the applicant for or the right holder in the registered  EU design.

Any person who can establish a legitimate interest may inspect a file without the consent of the applicant for or holder of the registered  EU design prior to the publication or after the surrender of the latter in the case provided for in paragraph 1.

Subsequent to the publication of the registered  EU design, the file may be inspected on request.

Where the files are inspected pursuant to paragraph 2 or 3, the following parts of the file shall be excluded from inspection:

Where the registration is subject to a deferment of publication pursuant to Article 50(1), access to the Register for persons other than the holder of the registered EU design shall be limited to the name of the holder, the name of any representative, the date of filing and registration, the file number of the application and the indication that publication is deferred. In such cases, the certified or uncertified extracts from the register shall contain only the name of the holder, the name of any representative, the date of filing and registration, the file number of the application and the indication that publication is deferred, except where the request for extracts has been made by the holder or by the holder’s representative.

Inspection of the files of registered EU designs requested pursuant to Article 74(3) shall be of the technical means of storage of the files. Such inspection shall take place online. The Executive Director shall determine the means of inspection.

Where the request for inspection of the files relates to an application for a registered EU design or to a registered EU design which are subject to deferment of publication in accordance with Article 50 or which, being subject to such deferment, have been surrendered before or on the date of expiry of that period, the request shall contain evidence that:

Upon request, inspection of the files shall be effected by means of electronic copies of file documents. The Office shall also, upon request, issue certified or uncertified copies of the application for a registered EU design by electronic means.

The Office shall keep the files of any procedure relating to EU design applications and to registered EU designs. The Executive Director shall determine the form in which those files are to be kept.

Where the files are kept in electronic format, the electronic files, or back-up copies thereof, shall be kept indefinitely. The original documents filed by parties to the proceedings, and forming the basis of such electronic files, shall be disposed of after a period following their reception by the Office, which shall be determined by the Executive Director.

Where, and to the extent that, files or parts of the files are kept in any form other than electronically, documents or items of evidence constituting part of such files shall be kept for at least five years from the end of the year in which:

Unless otherwise provided for in this Regulation or in national law, the Office and the courts or authorities of the Member States shall upon request give assistance to each other by communicating information or opening files for inspection. Where the Office opens files to inspection by courts, public prosecutors’ offices or central industrial property offices, the inspection shall not be subject to the restrictions laid down in Article 74.

The Office shall not charge fees for the communication of information or the opening of files for inspection.

Subject to paragraph 2, no person shall be compelled to be represented before the Office.

Without prejudice to paragraph 3, second subparagraph, of this Article, natural or legal persons having neither their domicile nor their principal place of business or a real and effective industrial or commercial establishment in the EEA shall be represented before the Office in accordance with Article 78(1) in all proceedings provided for by this Regulation, other than the filing of an application for a registered EU design.

Natural or legal persons having their domicile or principal place of business or a real and effective industrial or commercial establishment in the EEA may be represented before the Office by an employee.

Where there is more than one applicant or more than one third party acting in common, a common representative shall be appointed.

Representation of natural or legal persons in proceedings before the Office under this Regulation may only be undertaken by any of the following:

The professional representatives referred to in paragraph 1, point (c), shall only be entitled to represent third persons in proceedings on design matters before the Office.

Representatives acting before the Office shall, at the request of the Office or, where appropriate, of the other party to the proceedings, provide the Office with a signed authorisation for insertion on the files.

The Office shall establish and maintain a special list of professional representatives in design matters. Any natural person who fulfils all the following conditions may be entered on that list:

Entry on the list of professional representatives in design matters shall be effected upon request, accompanied by a certificate furnished by the Benelux Office for Intellectual Property or the central industrial property office of the Member State concerned, indicating that the conditions laid down in paragraph 4 are fulfilled. The entries in the list of professional representatives in design matters shall be published in the Official Journal of the Office.

The Executive Director may grant an exemption from any of the following:

A person may be removed from the list of professional representatives in design matters at the request of that person or when that person is no longer in a capacity to act as a professional representative. The amendments of the list of professional representatives in design matters shall be published in the Official Journal of the Office.

Representatives acting before the Office shall be entered in the database referred to in Article 72a and obtain an identification number. The Office may require the representative to prove the real and effective nature of their establishment or employment at any of the addresses identified. The Executive Director may determine the formal requirements for obtaining an identification number, in particular for associations of representatives, and for the entries of the representatives in the database.

Unless otherwise specified in this Regulation, the Union rules on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters shall apply to proceedings relating to EU designs and applications for registered EU designs, as well as to proceedings relating to simultaneous and successive actions on the basis of EU designs and national designs.

In the case of proceedings in respect of the actions and claims referred to in Article 81 of this Regulation:

References in this Regulation to Regulation (EU) No 1215/2012 shall include, where appropriate, the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters done on 19 October 2005.

The Member States shall designate in their territories as limited a number as possible of national courts and tribunals of first and second instance ( EU design courts) which shall perform the functions assigned to them by this Regulation.

Each Member State shall communicate to the Commission not later than 6 March 2005 a list of  EU design courts, indicating their names and their territorial jurisdiction.

Any change made after communication of the list referred to in paragraph 2 in the number, names or territorial jurisdiction of the  EU design courts shall be notified without delay by the Member State concerned to the Commission.

The information referred to in paragraphs 2 and 3 shall be notified by the Commission to the Member States and published in the Official Journal of the European Communities.

Subject to the provisions of this Regulation and to any provisions of Regulation (EU) No 1215/2012 applicable by virtue of Article 79 of this Regulation, proceedings in respect of the actions and claims referred to in Article 81 of this Regulation shall be brought in the courts of the Member State in which the defendant is domiciled or, if the defendant is not domiciled in any of the Member States, in any Member State in which the defendant has an establishment.

If the defendant is neither domiciled nor has an establishment in any of the Member States, such proceedings shall be brought in the courts of the Member State in which the plaintiff is domiciled or, if he is not domiciled in any of the Member States, in any Member State in which he has an establishment.

If neither the defendant nor the plaintiff is so domiciled or has such an establishment, such proceedings shall be brought in the courts of the Member State where the Office has its seat.

By way of derogation from paragraphs 1, 2 and 3 of this Article:

Proceedings in respect of the actions and claims referred to in Article 81(a) and (d) may also be brought in the courts of the Member State in which the act of infringement has been committed or threatened.

A EU design court court whose jurisdiction is based on Article 82(1), (2) (3) or (4) shall have jurisdiction in respect of acts of infringement committed or threatened within the territory of any of the Member States.

A EU design court whose jurisdiction is based on Article 82(5) shall have jurisdiction only in respect of acts of infringement committed or threatened within the territory of the Member State in which that court is situated.

An action or a counterclaim for a declaration of invalidity of a  EU design may only be based on the grounds for invalidity mentioned in Article 25.

In the cases referred to in Article 25(2), (3), (4) and (5) the action or the counterclaim may be brought solely by the person entitled under those provisions.

If the counterclaim is brought in a legal action to which the right holder of the  EU design is not already a party, he shall be informed thereof and may be joined as a party to the action in accordance with the conditions set out in the law of the Member State where the court is situated.

The validity of a  EU design may not be put in issue in an action for a declaration of non-infringement.

The EU design court with which a counterclaim for a declaration of invalidity of a registered EU design has been filed shall not proceed with the examination of the counterclaim, until either the interested party or the court has informed the Office of the date on which the counterclaim was filed. The Office shall record that information in the Register in accordance with Article 72(3), point (q). If an application for a declaration of invalidity of the registered EU design had been filed with the Office before the counterclaim was filed, the court shall be informed thereof by the Office and stay the proceedings in accordance with Article 91(1) until the decision on the application is final or the application is withdrawn.

The EU design court hearing a counterclaim for a declaration of invalidity of a registered EU design may, on application by the right holder of the registered EU design and after hearing the other parties, stay the proceedings and request the defendant to submit an application for a declaration of invalidity to the Office within a time limit which the court shall determine. If the application is not made within the time limit, the proceedings shall continue and the counterclaim shall be deemed withdrawn. Article 91(3) shall apply.

In proceedings in respect of an infringement action or an action for threatened infringement of a registered  EU design, the  EU design court shall treat the  EU design as valid. Validity may be challenged only with a counterclaim for a declaration of invalidity. However, a plea relating to the invalidity of a  EU design, submitted otherwise than by way of counterclaim, shall be admissible in so far as the defendant claims that the  EU design could be declared invalid on account of an earlier national design right, within the meaning of Article 25(1)(d), belonging to him.

In proceedings in respect of an infringement action or an action for threatened infringement of an unregistered  EU design, the  EU design court shall treat the  EU design as valid if the right holder produces proof that the conditions laid down in Article 11 have been met and indicates what constitutes the individual character of his  EU design. However, the defendant may contest its validity by way of a plea or with a counterclaim for a declaration of invalidity.

Where in proceedings before an EU design court, the EU design has been put in issue by way of a counterclaim for a declaration of invalidity:

An EU design court shall reject a counterclaim for a declaration of invalidity of a registered EU design if a decision taken by the Office relating to the same subject matter and cause of action and involving the same parties has already become final.

Where an EU design court has given a judgment which has become final on a counterclaim for a declaration of invalidity of a registered EU design, a copy of the judgment shall be sent to the Office without delay, either by the court or by any of the parties to the national proceedings. The Office or any other interested party may request information about such judgment. The Office shall enter the judgment in the Register in accordance with Article 72(3), point (r).

The  EU design courts shall apply the provisions of this Regulation.

On all design matters not covered by this Regulation, an EU design court shall apply the applicable national law.

Unless otherwise provided in this Regulation, a  EU design court shall apply the rules of procedure governing the same type of action relating to a national design right in the Member State where it is situated.

Where an EU design court finds that the defendant has infringed or threatened to infringe an EU design, it shall, unless there are special reasons for not doing so, issue an order prohibiting the defendant from proceeding with the acts which infringed or would infringe the EU design. It shall also take such measures in accordance with its national law as are aimed at ensuring that that prohibition is complied with.

The EU design court may also apply measures or orders available under the applicable law which it deems appropriate in the circumstances of the case.

Application may be made to the courts of a Member State, including  EU design courts, for such provisional measures, including protective measures, in respect of a  EU design as may be available under the law of that State in respect of national design rights even if, under this Regulation, a  EU design court of another Member State has jurisdiction as to the substance of the matter.

In proceedings relating to provisional measures, including protective measures, a plea otherwise than by way of counterclaim relating to the invalidity of a  EU design submitted by the defendant shall be admissible. Article 85(2) shall, however, apply mutatis mutandis.

An EU design court whose jurisdiction is based on Article 82(1), (2), (3) or (4) of this Regulation shall have jurisdiction to grant provisional measures, including protective measures, which, subject to any necessary procedure for recognition and enforcement pursuant to Chapter III of Regulation (EU) No 1215/2012, are applicable in the territory of any Member State. No other court shall have such jurisdiction.

A EU design court hearing an action referred to in Article 81, other than an action for a declaration of non-infringement, shall, unless there are special grounds for continuing the hearing, of its own motion after hearing the parties, or at the request of one of the parties and after hearing the other parties, stay the proceedings where the validity of the  EU design is already in issue before another  EU design court on account of a counterclaim or, in the case of a registered  EU design, where an application for a declaration of invalidity has already been filed at the Office.

The Office, when hearing an application for a declaration of invalidity of a registered  EU design, shall, unless there are special grounds for continuing the hearing, of its own motion after hearing the parties, or at the request of one of the parties and after hearing the other parties, stay the proceedings where the validity of the registered  EU design is already in issue on account of a counterclaim before a  EU design court. However, if one of the parties to the proceedings before the  EU design court so requests, the court may, after hearing the other parties to these proceedings, stay the proceedings. The Office shall in this instance continue the proceedings pending before it.

Where the  EU design court stays the proceedings it may order provisional measures, including protective measures, for the duration of the stay.

An appeal to the  EU design courts of second instance shall lie from judgments of the  EU design courts of first instance in respect of proceedings arising from the actions and claims referred to in Article 81.

The conditions under which an appeal may be lodged with a  EU design court of second instance shall be determined by the national law of the Member State in which that court is located.

The national rules concerning further appeal shall be applicable in respect of judgments of  EU design courts of second instance.

Within the Member State whose courts have jurisdiction under Article 79(1), the courts which would have jurisdiction ratione loci and ratione materiae in the case of actions relating to a national design right in that Member State shall have jurisdiction for actions relating to EU designs other than the actions referred to in Article 81.

Actions relating to an EU design, other than the actions referred to in Article 81, for which no court has jurisdiction pursuant to Article 79(1) and paragraph 1 of this Article may be heard before the courts of the Member State in which the Office has its seat.

Where actions for infringement or for threatened infringement involving the same cause of action and between the same parties are brought before the courts of different Member States, one seized on the basis of a  EU design and the other seized on the basis of a national design right providing simultaneous protection, the court other than the court first seized shall of its own motion decline jurisdiction in favour of that court. The court which would be required to decline jurisdiction may stay its proceedings if the jurisdiction of the other court is contested.

The  EU design court hearing an action for infringement or threatened infringement on the basis of a  EU design shall reject the action if a final judgment on the merits has been given on the same cause of action and between the same parties on the basis of a design right providing simultaneous protection.

The court hearing an action for infringement or for threatened infringement on the basis of a national design right shall reject the action if a final judgment on the merits has been given on the same cause of action and between the same parties on the basis of a  EU design providing simultaneous protection.

Paragraphs 1, 2 and 3 shall not apply in respect of provisional measures, including protective measures.

The provisions of this Regulation shall be without prejudice to any provisions of  Union law or of the law of the Member States concerned relating to unregistered designs, trade marks or other distinctive signs, patents and utility models, typefaces, civil liability and unfair competition.

A design protected as an EU design shall also be eligible for protection by copyright as from the date on which the design was created or fixed in any form, provided that the requirements of copyright law are met.

The application for a registered  EU design shall be filed in one of the official languages of the  Union.