13 MARCH 2003. - An Act to amend the Benelux Uniform Law on Designs or Models, made in Brussels on 20 June 2002 (1) (2)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1^er. This Act regulates a matter referred to in Article 77 of the Constitution.
Art. 2. The Protocol Amending the Benelux Uniform Law on Drawings or Models, done in Brussels on 20 June 2002, will come out its full effect.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 13 March 2003.
ALBERT
By the King:
Minister of Foreign Affairs,
L. MICHEL
Minister of Economy,
Ch. PICQUE
Seen and sealed the state seal:
Minister of Justice,
Mr. VERWILGHEN
(1) Session 2002-2003 (1)
Senat
Documents:
Bill tabled on 27 January 2003, No. 2-1443/1.
Report, No. 2-1443/2
Annales parlementaire :
Discussion, meeting of 12 February 2003.
Vote, meeting of 13 February 2003
Room
Documents:
Project transmitted by the Senate, No. 50-2300/1
Text adopted in plenary and subject to Royal Assent, No. 50-2300/2
Annales parlementaire :
Discussion, meeting of 27 February 2003.
Voting, meeting of 27 February 2003.
(2) The belgium deposited its instrument of ratification on 14 March 2003. The Protocol has not yet entered into force.
Protocol Amending the Benelux Uniform Law on Designs or Models
The Kingdom of Belgium,
The Grand Duchy of Luxembourg,
The Kingdom of the Netherlands,
Animated by the desire to amend the Benelux Uniform Law on drawings or models in order to adapt it to the text of Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of drawings or models, to establish a register of agents in drawings or models and to complete and correct a number of provisions,
The following provisions were agreed:
Article I^er
The Benelux Uniform Law on Designs or Models is amended as follows:
A. Article 1^er is replaced by the following provision:
Article 1^er
1. A design or model is protected only to the extent that the drawing or model is new and has an individual character.
2. Is considered as drawing or model the appearance of a product or part of a product.
3. The appearance of a product is conferred, in particular, by the characteristics of the lines, contours, colors, shape, texture or materials of the product itself or its ornamentation.
4. Any industrial or artisanal product, including, inter alia, parts designed to be assembled into a complex product, packaging, presentation, graphic symbol and typographical character. Computer programs are not considered a product.
B. Are inserted after section 1^er, article 1^erbis and article 1^erter, as follows:
Article 1^erbis
1. A drawing or model is considered new if, on the filing date or on the priority date, no identical drawings or templates were disclosed to the public. Drawings or models are considered identical when their characteristics differ only by insignificant details.
2. A drawing or model is considered to be of an individual character if the overall impression that this drawing or model produced on the informed user differs from that produced on such a user any drawing or model that was disclosed to the public before the filing date or priority date. To appreciate the individual character, it is taken into account the degree of freedom of the creator in drawing or model development.
3. For the assessment of novelty and individual character, a design or design is deemed to have been disclosed to the public if this design or model has been published after registration or otherwise, or exhibited, used in trade or made public in any other manner, unless these facts, in normal business practice, could not reasonably be known to the specialized circles of the sector concerned, operating in the European Community or the European Economic Area, before the date of filing or However, the drawing or model is not deemed to have been disclosed to the public only because the drawing or model has been disclosed to a third party on explicit or implied terms of secrets.
4. For the purpose of assessing novelty and individuality, it is not taken into account the disclosure to the public of a design or design, for which protection is claimed under a registration, if, within twelve months before the filing date or the priority date:
a. the disclosure was made by the creator or his rightful person or by a third party on the basis of information provided or acts performed by the creator or his rightful person, or
b. the disclosure was made as a result of improper conduct with respect to the creator or his or her rightful person.
5. The right of priority is defined in Article 4 of the Paris Convention for the Protection of Industrial Property. This right may be claimed by a person who has regularly introduced a drawing or model application or utility model in one of the countries parties to the Convention or the Agreement establishing the World Trade Organization.
Article 1^erter
1. A drawing or model applied to a product or incorporated in a product that constitutes a piece of a complex product is considered to be new and of an individual character only to the extent that:
a. the part, once incorporated in the complex product, remains visible during normal use of this product, and
b. the visible features of the part fulfil as such the conditions of novelty and individual character.
2. For the purposes of this Act, a complex product is defined as a product consisting of multiple parts that can be replaced in such a way as to allow the dismantling and winding of the product.
3. By normal use within the meaning of this article, under 1 means the use by the end user with the exception of maintenance, service or repair.
C. Section 2 is replaced by the following provision:
Article 2
1. Are excluded from the protection provided for in this Act:
a. the characteristics of the appearance of a product that are exclusively imposed by its technical function;
b. the characteristics of the appearance of a product that must necessarily be reproduced in their exact form and dimensions so that the product in which is incorporated or to which the drawing or model is applied can mechanically be connected to another product, be placed inside or around another product, or be put in contact with another product, so that each product can fulfill its function.
2. By derogation from this article, under 1b, the characteristics of the aspect of a product that are intended to allow the assembly or multiple connection of interchangeable products within a modular system are protected by rights on a design or model that meets the conditions set out in Article 1^erunder 1.
D. In section 3, the first paragraph is replaced by the following provision:
1. Without prejudice to the right of priority, the exclusive right to a drawing or model is granted by the registration of the deposit, carried out in Benelux territory with the Benelux Office of Drawings or Models (Benelux Deposit), or carried out with the International Bureau for the Protection of Industrial Property (International Deposit).
E. Section 4 is replaced by the following provision:
Article 4
Within the limits of articles 15 and 19, under 2, the recording is not attributable to the right to a drawing or model when:
a. the drawing or model is in conflict with an earlier drawing or model that has been disclosed to the public after the date of filing or the date of priority and that has been protected, since an earlier date, by an exclusive right of a community design or design, the registration of a Benelux repository, or an international filing;
b. is made use of an earlier mark in the drawing or model without the consent of the holder of that mark;
c. a work protected by copyright without the consent of the copyright holder in the drawing or model;
d. the drawing or model constitutes an abusive use of one of the elements listed in Article 6ter of the Paris Convention;
e. the drawing or model is contrary to the good customs or public order of one of the Benelux countries;
f. the repository does not sufficiently reveal the characteristics of the drawing or model.
F. Section 4bis is repealed.
G. Section 5 is amended to read:
1. The words "the publication of the repository" are replaced by the words "the publication of the filing";
2. The words "the Benelux deposit" are replaced by the words "the right to Benelux deposit";
3. The words "invoking the invalidity of this deposit" are replaced by the words "invoking the invalidity of the registration of this deposit".
H. Section 8 is replaced by the following provision:
Article 8
1. The Benelux repository of drawings or models is made either from the national administrations or from the Benelux Office, in the forms and by payment of the taxes fixed by the execution regulations. The Benelux repository can include either a single drawing or model (single deposit) or several (multiple deposit). It shall be checked if the parts produced meet the conditions prescribed for fixing the deposit date and the date of deposit shall be stopped. The applicant shall be informed without delay and in writing of the date of filing or, if any, of the reasons not to award it.
2. If the applicant is not satisfied with the other provisions of the Implementing Regulations at the time of filing, the applicant shall be informed without delay and in writing of the conditions to which the applicant is not satisfied and the opportunity to respond to them within a period fixed to that effect by the Implementing Regulations.
3. The deposit is no longer effective if, within the time limit, it is not satisfied with the provisions of the Implementing Regulations.
4. When the deposit is made with a national administration, it shall forward the Benelux deposit to the Benelux Office, either without delay after receiving the deposit or after it has found that the deposit meets the conditions prescribed in this section, Practice 1^er 3.
5. The claim of the right of priority is made at the filing or by special declaration made with the Benelux Office in the month following the filing, in the forms and by payment of the taxes fixed by the enforcement regulations. The absence of such a claim results in the loss of priority rights.
I. Section 9 is amended to read:
1. The second paragraph shall be replaced by the following provision:
2. The Bureau Benelux immediately records the Benelux filings, as well as the international deposits that have been published in the International Bulletin of Designs or Models International Design Gazette, for which applicants have requested that they produce their effects in Benelux territory.
2. The third paragraph is amended to read:
a. The second sentence is repealed.
b. The words "under the application of Article 4, sub 2" are replaced by the words "under the application of Article 4, sube".
c. The words "a judicial decision, having the force of anything judged" are replaced by the words "a judicial decision that is no longer subject to opposition, appeal, or cassation."
3. In the fourth paragraph, the words ", as derived from the means of reproduction, referred to in section 8, sub(1), are repealed.
J. Section 11 is amended to read:
The words "taken on the date of filing or when the applicant invokes the application of Article 4 of the Paris Convention, on the date of filing that gave rise to the right of priority" are replaced by the words "taken on the date of filing or on the date that creates the right of priority".
K. Section 12 is amended to read:
1. In the first paragraph, the second sentence is replaced by the following provision:
Without prejudice to the provisions of section 19, under 2, the drawing or model object of the repository may not be modified for the duration of the registration or for the occasion of its renewal.
2. The second paragraph shall be replaced by the following provision:
2. It can be renewed for four successive five-year periods up to a maximum of twenty-five years. Renewal is made by the only payment of the tax fixed by execution regulation. This tax must be paid within twelve months of the expiry of the registration; it may still be paid within six months after the date of the expiry of the registration, subject to the simultaneous payment of a surtax fixed by execution regulation. The renewal has effect from the expiry of the registration.
3. The fourth paragraph shall be replaced by the following provision:
4. Six months prior to the expiration of the first to the fourth registration period, the Benelux Bureau recalls the date of this expiry by a notice to the drawing or model holder and to third parties whose drawing or model rights were recorded in the registry.
L. Section 13 is amended to read:
1. The second paragraph shall be replaced by the following provision:
2. The holder of the drawing or model may invoke the exclusive right to a drawing or model against a Licensee who contravenes the terms of the licence contract, with respect to its duration, the form covered by the registration under which the drawing or model may be used, the products for which the license was granted and the quality of the products put in the trade by the Licensee.
2. The third paragraph is supplemented by the following provision:
The provision of the previous sentence applies to rights of gage and seizures.
3. In the fourth paragraph, the words "Article 14, paragraphs 3 and 4" are replaced by the words "Article 14, paragraphs 2 and 3".
Mr. Section 14 is amended to read:
1. The first paragraph is replaced by the following provision:
1. Without prejudice to the possible application of the common civil liability law, the exclusive right to a drawing or model allows the holder to object to the use of a product in which the drawing or model is incorporated or to which the drawing is applied and having an identical aspect to the drawing or model as it has been filed, or that does not produce on the informed user a different overall impression, taking into account the degree of freedom of the creator in the development of the drawing. In particular, production, offer, marketing, sale, delivery, leasing, import, export, exposure, use, or detention for any of these purposes is defined by use.
2. The second paragraph is repealed, paragraphs 3, 4, 5, 6, 7 and 8 renumbering paragraphs 2, 3, 4, 5, 6, and 7.
3. The second paragraph is amended to read:
a. the words "unless the third party has acted in the knowledge of the deposit" are repealed;
b. the last comma is replaced by a point;
c. is inserted a provision, which reads as follows: "From the date of filing, a reasonable allowance may be required from the person who, in the knowledge of the filing, has carried out acts as referred to in this section, under 1, to the extent that the licensee has acquired exclusive rights in that respect."
4. The fifth paragraph shall be replaced by the following provision:
5. However, the exclusive right to a drawing or model does not imply the right to object to acts referred to in this article under 1, relating to products that have been put in circulation in one of the Member States of the European Community or in another State that is a party to the Agreement on the European Economic Area, either by the holder or with his consent, or to acts referred to in Article 17.
5. The seventh paragraph is repealed.
N. Is inserted after article 14bis , an article 14ter , as follows:
Article 14ter
1. The exclusive right to a design does not imply the right to object to:
a. private and non-commercial acts;
b. acts performed for experimental purposes;
c. acts of reproduction for purposes of illustration or instruction, provided that such acts are consistent with loyal business practices, do not unduly prejudice the normal exploitation of the drawing or model and that the source is indicated.
2. In addition, the exclusive right to a drawing or model does not imply the right to object:
a. equipment on ships or aircraft registered in another country when temporarily entering Benelux territory;
b. the importation of spare parts and accessories to Benelux territory for the purpose of repairing these vehicles;
c. the performance of repairs on these vehicles.
3. The exclusive right to a drawing or model that constitutes a piece of a complex product does not imply the right to object to the use of the drawing or model for the purpose of repairing this complex product with a view to making it its original appearance.
O. Section 15 is replaced by the following provision:
Article 15
1. Any interested person, including the Public Prosecutor's Office, may invoke the invalidity of the registration of a drawing or model if:
a. the drawing or model does not meet the definition referred to in section 1^ersecond and third paragraphs;
b. the drawing or model does not meet the conditions set out in Article 1^er, paragraph 1, and articles 1bis and 1ter;
c. the drawing or model falls under the application of section 2;
d. if this recording is not attributable to the right to drawing or model under Article 4, under e or f.
2. Only the applicant or holder of an exclusive right to a drawing or model deriving from the registration of a community drawing or model, a Benelux registration or an international repository may invoke the invalidity of the registration of the posterior repository of a drawing or model that is in conflict with his or her right, if the registration of the repository is not attributable of the right to drawing or model in application of the article.
3. Only the holder of an earlier trademark right or the holder of an earlier copyright may invoke the invalidity of the registration of the Benelux deposit or the deriving rights for the Benelux territory of an international repository of that drawing or model, if no right to a drawing or model is acquired pursuant to Article 4, under b respectively c.
4. Only the interested person may invoke the invalidity of the recording of the drawing or model, if no right to the drawing or model is acquired under Article 4, sub d.
5. Only the creator of a drawing or model as referred to in Article 5, sub 1, may, under the conditions referred to in this article, invoke the invalidity of the registration of a drawing or model made by a third party without its consent.
6. The invalidity of the registration of a drawing or model may be pronounced even after termination of the right or waiver of that right.
7. When the action in nullity is introduced by the public prosecutor, only the courts in Brussels, The Hague and Luxembourg are competent. The action brought by the Public Prosecution Service suspends any other action brought on the same basis.
P. Section 16 is replaced by the following provision:
Article 16
1. The courts are solely competent to decide on the actions that have their basis in this Act.
2. The irreceivability that arises from the failure to record the filing of a drawing or model is covered by the registration of the drawing or model or the renewal that is being carried out during the proceeding.
3. The judge declares de-registered records.
Q. Section 17 is amended to read:
1. The first paragraph is replaced by the following provision:
1. A personal right of possession is recognized to the third party who, before the date of filing a drawing or model or before the priority date, manufactured in Benelux territory products having an identical appearance to the drawing or model deposited or not producing on the user a different overall impression.
2. In the fourth paragraph, the words "without the deposition rights" are replaced by the words "without the deriving right of registration".
R. In Article 18, the following provision is inserted after the penultimate sentence of the first paragraph:
The provision of the previous delisting sentence applies in the event of registration of a right of gage or seizure.
S. Section 19 is replaced by the following provision:
Article 19
1. Subject to the provisions of this Article, under 2, the cancellation, voluntary deletion and renunciation shall relate to the drawing or model in its entirety.
2. If the registration of the filing of a drawing or model may be cancelled under section 4, sub-b, c, d, or e, or section 15, sub-b or c, the repository may be maintained in a modified form, if in that form, the drawing or model meets the criteria for granting the protection and identity of the drawing or model is retained.
3. By the maintenance referred to in this section, under 2, the registration may be heard with a partial waiver from the holder of the right or the registration of a judicial decision that is no longer subject to opposition, appeal or appeal, or to appeal in cassation, pronouncing the partial invalidity of the registration of the deposit.
T. Section 20 is amended to read:
1. At the beginning of the first paragraph, the words "in addition to the powers conferred on it by the preceding articles" are replaced by the words "in addition to the powers conferred on it by the other articles".
2. In the first paragraph, after the replacement of the item at the end of the point d by a point-virgule, a point e is inserted, as follows:
e. provide to any person upon request information extracted from the register of agents in drawings or models as well as the rules relating to the registration of agents in drawings or models that are arrested in or under this Act.
3. After paragraph 2 is inserted a third paragraph, which reads as follows:
3. Recordings and other references referred to in paragraph 1 (b) may be edited electronically.
U. Chapter II, entitled "Artistic drawings or models marked" is amended to read:
1. The title of Chapter II is replaced by the title "Cut with copyright".
2. Sections 21 and 24 are repealed.
3. In article 22, the words "work of art" are replaced by the word "work".
4. In sections 22 and 23 the words "with a marked artistic character" are repealed.
V. Further to chapter IV, a chapter reading:
Chapter V
Provisions concerning the register of agents in drawings or models
Rule 31
1. The Benelux Office shall maintain, in accordance with the provisions set out in the Implementing Regulations, a register of representative in drawings or models to determine who meets the requirements for the exercise of the proxy activity in drawings or models under this Act. The register is made available free of charge to the public.
2. Any person in possession:
a. a degree recognized by the Board of Directors of the Benelux Office or a similar supporting document, or
b. of a certificate issued by the Director of the Benelux Office, which appears to have passed a suitability test, or
c. a derogation from the requirement to produce a document as referred to in a or under b, granted by the Director of the Benelux Office, may be registered, at the request of the Director, in the register of design agents.
3. The Board of Directors of the Benelux Bureau recognizes a degree as referred to in this section, under 2a, if it considers that the examination conducted by the proceeding that issues the degree leads to sufficient knowledge of the uniform law and of the main international instruments in the field of drawings or models law as well as sufficient capacity to apply them.
Rule 32
1. In the event of refusal of registration or derogation or in the event of de-registration in the register, or in the case of refusal of recognition or withdrawal of recognition of a diploma, the interested party may, within two months after the refusal, the said de-registration, or the said withdrawal, apply to the Court of Appeal of Brussels, the Gerechtshof of The Hague or the Court of Appeal of Luxembourg for an order of recognition
2. As part of this procedure, the Benelux Office may be represented by the Director or a delegated staff member.
3. The decision of the appeal court is subject to a cassation appeal, which is suspensive.
Rule 33
Others are not allowed to be known in the business life as if they are registered in the register referred to in section 31, sub1.
Article II
Article 4 and Article 15, as enacted after the date of entry into force of this Protocol, shall not apply to the rights arising from the filing of a drawing or model made before that date or the law deriving before that date for the Benelux territory of an international filing; Article 4, and Article 15 as denominated prior to the entry into force of this Protocol, shall remain applicable to rights arising from deposits made before that date.
Article III
At the time of entry into force of this Protocol, Article 12, sub 2, is retroactive to 28 October 2001.
Article IV
Section 14, sub 1, does not apply to the acts to which the person who had commenced them before the date of entry into force of this Protocol, if the holder of the drawing or model cannot object to these acts under the text of Article 14 as it was written before the date of entry into force of this Protocol.
Article V
Section 14ter, under 3, does not apply to drawings or models filed prior to the effective date of this Protocol.
Article VI
Pursuant to Article 1^erunder 2, the Treaty relating to the Institution and Status of a Benelux Court of Justice, the provisions of this Protocol shall be designated as common legal rules for the application of Chapters III and IV of the Treaty.
Article VII
This Protocol will be ratified. The instruments of ratification shall be deposited with the Government of the Kingdom of Belgium.
Article VIII
This Protocol shall enter into force on the first day of the third month following the deposit of the third instrument of ratification.
Article I^er, under V, comes into force on a date fixed by execution regulation, a different date that may be arrested for the various provisions.
In faith, the undersigned, duly authorized to do so, have signed this Protocol.
Done in Brussels on 20 June 2002, in three copies, in French and Dutch, both texts being equally authentic.