Restrictions to the exclusive right
The exclusive right to a design does not imply the right of the holder to oppose:
- acts carried out privately and for non-commercial purposes;
- acts carried out for experimental purposes;
- acts of reproduction for the purpose of making citations or teaching.
These acts do not, therefore, require the consent of the design holder. Furthermore, the source of the design must always be indicated.
The exclusive rights to a design that constitutes a component of a complex product does not involve the right to oppose the use of the design in order to repair this complex product and restore its original appearance. A complex product means a product composed of multiple components that can be replaced permitting disassembly and re-assembly of the product.
The holder of a design who placed products on the market in one of the Member States of the European Community or gave his agreement to this, no longer has the right to oppose acts relating to these products. His design rights are said to be "exhausted" for the items placed on the market either by himself or with his agreement, and he can no longer control these items.
Right of prior use
Furthermore, a right is assigned to each third party who, prior to the date of filing of a design, manufactured a product within the territory of Benelux that has an appearance which is identical to the filed design (or which does not give an informed user a different overall impression).
This right is called the "right of prior use".
This right is also assigned to any party that, in the same conditions, has started to carry out his intention to manufacture the product.
The right of prior use allows the holder to continue or begin the manufacture of these products and to use his design (with the exclusion of imports), notwithstanding the rights that derive from registration.