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Neutral Background. Dimitrios Andrianopoulos, OHIM Alicante, 20.11.2012. Article 4(1)(e) CDIR: “The design shall be reproduced on a neutral background…”

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Neutral Background

Dimitrios Andrianopoulos, OHIM

Alicante, 20.11.2012

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Article 4(1)(e) CDIR: “The design shall be reproduced on a neutral background…”

Article 10(1)(c) CDIR: “… a filing date cannot be granted if the application does not contain a representation of the design pursuant to article 4(1)(e)…”

what is neutral background
What is neutral background?

The background in a view is considered neutral as long as the design shown in this view is clearly distinguishable from its environment without interference of any other object, accessory or decoration, whose inclusion in the representation could cast doubt on the protection sought.

(Decision of 25 April 2012, R 2230/2011‑3 – Webcams, para. 11-12).

In other words, the requirement of a neutral background neither demands a ‘neutral’ colour nor an ‘empty’ background. It is instead decisive that the design stands out so clearly from the background that it remains identifiable.

(Decision of 25 January 2012, R 284/2011‑3 – Tool chest, para. 13).

how to remedy
How to remedy

When the views of the design are reproduced on a not neutral background the applicant is given the possibility to:

  • replace the views with completely new ones reproduced on neutral background
  • modify the original views in such a way that the design will be isolated from its background(remove additional elements, use disclaimers)
  • withdraw the “not neutral” views, maintaining in the representation only the

“neutral” views

Filing date: the date when the deficiency is remedied (Article 10(2)CDIR)

If the applicant fails to remedy the deficiency:

  • Design is refused – Final status: “design not to be dealt as a Community Design”
  • Fees are refunded
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RCD 2038216

INDP: Housings for air filters, for engines

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RCD 2038216

INDP: Housings for air filters, for engines

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QUESTIONS:

  • Are additional elements, which do not form part of the design, allowed in the representation of the design for illustrative purposes (show of use etc..) ?
  • When the representation of the design is not reproduced on a neutral background the deficiency can be remedied by:

(a) replacing the deficient views with new ones ?

(b) amending the original views (remove background or use disclaimers) ?

(c) withdrawing the deficient views ?

  • Do the above ways of remedying the deficiency of the not neutral background

affect the filing date ?