LAW no. 129 of 29 December 1992 (republished)
on design protection *)
Official Gazette no. 242 of April 4, 2014
*) Republished under art. 248 of Law no. 187/2012 for the implementation of Law no. 286/2009 on the Criminal Code, published in the Official Gazette of Romania, Part I, no. 757 of 12 November 2012, as amended.
Law. 129/1992 has been republished in the Official Gazette of Romania, Part I, no. 876 of 20 December 2007 and was subsequently amended by Law no. 76/2012 for the implementation of Law no. 134/2010 on the Code of Civil Procedure, published in the Official Gazette of Romania, Part I, no. 365 of 30 May 2012, as amended.
Chapter I General Provisions
(1) The rights acquired and designs are protected in Romania by registration with the State Office for Inventions and Trademarks, hereinafter called OSIM, according to this law.
(2) This Law shall apply to the designs covered by a registration or an application for registration in Romania or with effects in Romania as a result of a Community or international.
(3) Foreigners with residence or registered office outside Romania benefit from this law under international conventions on designs, to which Romania is a party.
Purposes of this law, the terms or expressions below are defined as follows:
A) Hague Agreement - Agreement Concerning the International Deposit of Industrial Designs, adopted at The Hague on November 6, 1925, with subsequent amendments, to which Romania adhered by the Law no. 44/1992;
B) author - individual or group of individuals constituted according to an agreement, that created the design;
C) certificate of registration - the title of protection granted by OSIM for the registered designs;
D) design - the appearance of a product, or a part thereof, in two or three dimensions, resulting from the combination of key features, particularly lines, contours, colors, shape, texture and / or materials of the product itself and / or its ornamentation;
E) Community design - design protected under the Regulation no. 6/2002 / EC, published in the Official Journal of the European Communities no. 3 of 5 January 2002 by the Office for Harmonisation in the Internal Market, with effect throughout the European Communities;
F) insignificant details - those graphic or shape, which determines the individual character of the design;
G) registration - the acquisition of the rights to the designs under this law or international conventions to which Romania is a party;
H) authorized representative - the person who practices the profession of industrial property under the law and which may be an interested party in the proceedings before OSIM;
I) product - any article produced through an industrial or handicraft, including inter alia parts intended to be assembled into a complex product, packaging, presentations, graphic symbols, typography; Computer programs are not considered product;
J) complex product - a product composed of multiple components that can be replaced in a manner to allow disassembly and reassembly of the product;
K) applicant - natural or legal person who requests OSIM registration and the issuance of a certificate of registration of a design;
L) holder - natural or legal person to whom the rights conferred by design registration and certificate of registration is issued.
(1) The right to issue the certificate of registration belongs to the author of the design or his successor in title to designs created independently.
(2) If several persons have independently created a design, the right to issue the registration certificate belongs to the person who first filed the application for registration.
(3) If the design has been created as a result of a contract with a creative mission or by employees in the duties, rights belong to the person who ordered it.
Until proven otherwise, the applicant is presumed to be entitled to the certificate of registration of the design.
(1) The rights in a design acquired under this Law shall not prejudice the rights of unregistered designs, trademarks and other distinctive signs, patents and utility models, typefaces, topographies of semiconductor products.
(2) protection of the design registered under this Law shall not exclude or prejudice copyright protection thereof.
Chapter II Requirements for the Protection
(1) The request may be made to the extent that constitutes a design within the meaning of art. 2 is new and has individual character.
(2) A design is considered new if no identical design or model has not been made public before the date of application for registration or, if priority was claimed, before the priority date.
(3) It is considered that the designs are identical if their characteristic features differ only in immaterial details.
(4) It is considered that a design has individual character if the overall impression it produces on the informed user differs from that produced on such a user by any design or model made public before the date of application for registration or, if priority was claimed, before the priority date.
(5) In assessing individual character should consider the degree of freedom of the designer in developing the design.
(6) If a design applied to a product or incorporated into a product constitutes a component part of a complex product, it will be deemed to be new and have individual character if the following conditions are met:
A) the part, once incorporated into the complex product, remains visible during normal use; normal use means use by the beneficiary without maintenance and repairs;
B) visible component part characteristics themselves fulfill the conditions for novelty and individual character.
(1) the purposes of art. June is considered that a design was made public if it has been published or otherwise disclosed, exhibited, used in trade, except where these events could not reasonably and in the course of ordinary become known circles specialized in the sector concerned, operating within the European Union before the date of application for registration or, if priority was claimed, before the priority date. However, it will be considered that the design was made public for the simple reason that it has been disclosed to a third person under explicit or implicit conditions of confidentiality.
(2) pursuant to art. 6 para. (2) and (4) the disclosure is not considered whether the design for which protection is sought was made public:
A) by the author or his successor in title or by a third party or acts based on information provided by the designer or his successor;
B) during the 12 months preceding the date of filing the application for registration or, if priority is claimed, the priority date.
(3) Para. (2) shall apply and if the design has been made public as a result of abuse in connection with the author or his successor.
(1) Designs determined exclusively by a technical function can not be registered.
(2) can not be recorded a design to be reproduced in exact form and dimensions in order to permit the product in which it is incorporated or to which it is applied to be mechanically connected or placed around or another product so that either product may perform its function.
(3) can be registered design allowing multiple assembly or connection between interchangeable products within a modular system.
Are excluded from protection designs contrary to public order or morality.
Chapter III Registration and issuance of protection
(1) The application for registration of a design shall include:
A) request for registration of the design;
B) identification of the applicant;
C) the number of designs for which protection is sought;
D) the products which incorporate the design, if applicable;
E) describe novel characteristic elements of the design for which protection is sought, as they appear in the graphic representations filed;
F) the name or a statement on the applicant's responsibility that the authors have waived the right to be mentioned in the application and / or design publications;
G) graphic representations of the design in 3 copies.
(2) An application may also include, where appropriate, and other items that does not make the filing date:
A) the identification of the authorized, where it was designated in the registration;
B) priority documents, where it is one of the priorities set out in art. 16 and 17;
C) a request for deferment of publication;
D) power of attorney before OSIM;
E) statement indicating the information, after applicant's knowledge, allows to prove that the conditions for the grant of the design for which registration is sought.
(1) The graphic representations shall completely render the design covered by the application for registration, so its aesthetic features to be highlighted. Otherwise, the registration shall be rejected. Graphic representations must be of sufficient quality for all design details to be highlighted and publication possible.
(2) If a drawing, graphic representations may be accompanied by three specimens.
(3) not allowed to register designs schematically plotted or principle.
(1) The application for registration and the description presented in accordance with art. 10 and written in Romanian, accompanied by graphic representations of the design or, where applicable, the specimens shall be filed with OSIM and the regular filing.
(2) OSIM register the application if filed less than the following: an application containing the request for registration of the design, the identification of the applicant and graphic representations or specimens, in one copy.
(3) If within two months from the date of application for registration under par. (2) are not required to reach additions submitted under paragraph filing. (1) the application is rejected.
(4) filing date is the date of filing the documents referred to in para. (2) or the date resulting from treaties and conventions on designs to which Romania is a party.
(5) An application having a filing date is entered in the Register Applications.
(6) Register of applications can be achieved both in paper form and in electronic format.
(1) In proceedings before OSIM registrant or his successor in title may be represented by an authorized industrial property.
(2) For persons who are resident or located in Romania, the representation under par. (1) is mandatory except for the application.
(1) A multiple deposit may include several designs of the same product category, according to the International Classification of designs.
(2) The designs covered by a multiple must meet the condition of unity of design, unity of production or unity of use, or shall belong to the same set or composition of items.
Regular deposit ensures a right of priority, starting from the date of its establishment, to any subsequent deposit concerning the same design.
(1) Natural or legal persons of States Parties to the conventions to which Romania is a party has a right of priority of six months with effect from the date of first filing if you apply for protection in this period, for the same drawing or exemplary.
(2) recognizes a right of priority of six months, based on a utility storage model.
If the applicant certain goods and services in an international exhibition official or officially recognized, under the Convention on International Exhibitions signed in Paris on 22 November 1928 and ratified by Romania by Law no. 246/1930, as amended and supplemented, organized in Romania or in a Member State of the Paris Convention for the Protection of Industrial Property, revised at Stockholm on 14 July 1967, and if an application for registration of the design under which these products were presented was filed with OSIM within 6 months from the date of the exhibition, the applicant shall enjoy a right of priority from the date the product in the exhibition; this time not extend the period of priority laid down in Art. 16.
Priorities provided for in art. 16 and 17 are recognized if they are raised with the application and if within 3 months from the submission date is confirmed by the priority documents.
(1) Applications for registration filed with OSIM shall be subjected to a preliminary examination showing:
A) the conditions for the application form, referred to in art. 10 para. (1);
B) the conditions prescribed Infographics under Art. 11;
C) the conditions prescribed for other documents or documents attached to the application under Art. 10 para. (2);
D) payment of charges in the term and amount prescribed by law.
(2) If the irregularities are not corrected within a period of OSIM, the application shall be rejected or, where appropriate, priority shall not be recognized.
(3) If irregularities are found, they shall notify the applicant, giving them a necessary term for fixes.
(4) Applications not meeting the requirements of multiple application will be divided by the applicant, upon request by OSIM
(5) The applicant is obliged to divide the application within the time granted by OSIM, constituting a regular national deposit for each group of designs that meet the requirements of Art. 14.
(6) If the applicant does not divide the application within the prescribed period, OSIM shall divide the application ex officio into more applications divided and will examine only the first application, rejecting the others.
(7) divided applications may be filed for the elements that do not exceed the initial application. Divided requests are considered filed on the date of filing the initial application.
(1) The application for registration of the design and reproduction, photo or graphic representation thereof shall be published in the Official Bulletin of Industrial Property of OSIM, in electronic format, not later than four months from the date of filing regular, white or black, on request, in color.
(2) The publication referred to par. (1) may be postponed at the applicant's request for a period not exceeding 30 months following the filing date or priority date, when it was invoked.
(3) Publication of international applications by the World Intellectual Property Organization is considered a publication under par. (1).
(1) Interested persons may make written oppositions to OSIM the application for registration of the design, within two months of publication, for the reasons set out in art. 22 para. (3).
(2) OSIM notifies the opposition to the applicant, indicating the name of the person who filed the opposition on the grounds and design registration.
(3) Within two months of notification of the opposition, the applicant may submit its views.
(4) opposition concerning the published design application shall be settled by a board of the Design Division within 3 months of its submission. The Commission shall report for admission or rejection of the opposition, which will be considered during substantive examination.
(5) Settlement of opposition may be suspended in the following situations:
A) it is based on an application for registration of a design until a decision about it;
B) the opposing design subject of an action for annulment, pending final determination of the case.
(1) Applications for registration of designs shall be examined by the examination of designs. Commission shall, where appropriate, registration or rejection of the design, within 12 months of publication of the application or may take note of the waiver request or withdrawal. The Commission will take the decision to register the design based on an examination report in accordance with Art. 2, 6 and 7.
(2) The registration of designs is made in the register of designs and published in the Official Bulletin of Industrial Property of OSIM
(3) The application for registration of a design registration will be rejected or will be canceled for the following reasons:
A) the provisions of Art. 2, 6 and 7;
B) the claim is included in Art. 8 and 9;
C) incorporates, without the holder of a work protected by Law no. 8/1996 on copyright and related rights, as amended and supplemented, or any other protected industrial property law;
D) constitutes an improper use of any of the items mentioned in the list in art. 6 ter of the Paris Convention for the Protection of Industrial Property, revised at Stockholm on 14 July 1967, to which Romania adhered by Decree no. 1177/1968 or misuse of the emblems and escutcheons other than those mentioned in art. 6 ter of the Convention;
E) the applicant has not demonstrated that it is 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 subject to the public after the date of filing the application for registration or after the priority date if priority is claimed, and which is protected from an earlier date by a registered Community design or an application for registration of a Community design, or a design registration in Romania or an application for protection in Romania;
G) design uses a hallmark that gives its holder the right to prohibit such use.
(4) When a design has been rejected from registration times when a right over a design has been declared invalid under par. (3) design may be registered or the design right can be maintained in an amended form, if in that form protection requirements will be met, and the design identity will be preserved. Registration or maintenance in an amended form may include registration accompanied by a disclaimer by the holder of the right to the Community design or entry in the Register of Designs of the judgment of the court which issued the partial nullity of the right to the Community design.
(5) The right in a design may be declared invalid even after it has expired or surrendered.
(6) In examining the application, it will take into account all the documentary existing designs OSIM, international registrations of designs at the World Intellectual Property Organization, drawings / models Community and any other relevant documents of proceedings filed by interested persons. During the examination procedure, OSIM may request any additional necessary, and if the drawings, even specimens.
(7) The provisions of this law shall apply to international applications filed under the Hague Agreement, which extend their effects in Romania, except where otherwise stated.
If a design registration, renewal of registration or entry of a change in its register of designs has been affected, obviously in error, OSIM may, within 3 months from the date of registration or the enrollment date to revoke the registration, renewal or recordal of change. The decision to recall motivated, interested persons shall be notified within 30 days.
(1) Decisions on applications for registration of the design may be appealed in writing and grounds, with OSIM, within 30 days from notice.
(2) The appeal shall be examined within 3 months from the filing of the appeal, the Appeals Board of the Department of OSIM *)
*) The organization and functioning of the State Office for Inventions and Trademarks are regulated by Government Decision no. 573/1998 published in the Official Gazette of Romania, Part I, no. 345 of 11 September 1998 as amended.
(1) decision of the Board of Appeal shall be notified to the parties within 30 days after delivery and may be subject to appeal at the Bucharest Tribunal, within 30 days from notice. The decision is subject only to appeal.
(2) The Commission appeals have become final shall be published in the Official Bulletin of Industrial Property of OSIM, within 60 days of the judgment.
(3) before the Commission appeals the parties may appear in person or be represented by a lawyer through legal counsel or an authorized industrial property attorney.
All decisions issued by OSIM shall be substantiated.
Issue of certificates of registration of designs by OSIM is under decisions of acceptance of application for registration of designs within 30 days of the date on which the decision of acceptance became final.
(1) The procedures regarding registration applications and designs registration certificates are subject to duties, the amount and terms established by law. Fees shall be paid into the account of OSIM
(2) Fees payable by individuals and legal persons domiciled or, where appropriate, based abroad are paid in currency into the account of OSIM
(3) Failure to pay taxes to attract legal deadlines that procedure failure or refusal of registration of the design or model.
(1) The applicant or holder of the registration certificate on grounds of force majeure could not comply with a term for the procedures before OSIM within if a reasoned submission within 60 days the cessation of the reasons that prevented to act, but not later than one year after the expiry of the time limit.
(2) Para. (1) does not apply in the following situations:
A) claiming priority under Art. 16-18;
B) payment of registration fees and publication;
C) opposition filing according to Art. 21;
D) appeals filing according to Art. 24.
(3) The application for relief must be accompanied by proof of payment of the prescribed fee.
Chapter IV Rights and obligations
During the period of validity of the design registration, the proprietor has an exclusive right to use them and to prevent their use by a third party not having his consent. The proprietor is entitled to prevent third parties from performing, without his consent, the following acts: reproducing, manufacturing, selling or offering for sale, marketing, importing, exporting or using a product in which the design is incorporated or to which it apply or storing such a product for those purposes.
(1) The scope of protection is determined by the graphic representations of the registered designs.
(2) The protection granted to a design under this Law shall extend to any design which does not produce a different overall impression on an informed user.
(3) In determining the scope of protection consider the degree of freedom of the designer in developing the design.
Rights conferred by Art. 30 shall not apply with respect to:
A) acts performed exclusively for personal and non-commercial, experimental, research or educational purposes, provided that these acts do not prejudice normal exploitation of designs and mention the source;
B) acts of reproduction for research or education, making citations or of teaching, provided that such acts are compatible with fair trade practice and do not unduly prejudice the normal exploitation of the design and the source It is mentioned;
C) equipment located on sea or air transport vehicles registered in another country when these temporarily enter the territory of Romania, or importing spare parts and accessories for the purpose of repairing such vehicles or performing repairs on such vehicles;
D) using or taking effective and serious measures for the use of designs by third parties, in the time of revocation of the certificate holder and revalidation;
E) use of the designs in good faith, during the period between publication of forfeiture of Rights and publication rights restored.
The rights deriving from the design registration shall not be exercised in case of products placed on the Community market in embedded designs that are protected or to which they apply, previously marketed by the holder of the registration certificate or consent.
(1) Since publication of the application the natural person or legal entity entitled to the certificate of registration shall temporarily enjoy the same rights conferred pursuant to art. 30, to issue the certificate of registration, unless the application was rejected or withdrawn.
(2) Violation of par. (1) entail the obligation for compensation under civil law; the payment of the damages may be executed only after the certificate of registration of the design.
(1) The validity of a certificate of registration of the design is 10 years from the filing date and may be renewed for three successive periods of five years.
(2) Throughout the period of validity of the certificate holder is required to pay maintenance fees in force.
(3) OSIM granted a grace period of 6 months to pay maintenance fees in force, which are subject to penalties.
(4) Failure to pay such fees shall cause the forfeiture of rights.
(5) Forfeiture holder's rights shall be published in the Official Bulletin of Industrial Property of OSIM
(6) In the case of forfeiture of the holder, it may require the revalidation of registration certificate within 6 months from the date of forfeiture, for good reasons.
Exclusive right of exploitation arising from the design registration shall cease:
A) the expiry date;
B) by cancellation of the registration certificate;
C) forfeiture of rights;
D) by waiving registration certificate holder.
Holders of the certificates of registration of designs may sign D mention products or the letter "D" capital letter, enclosed in a circle, accompanied by the certificate holder's name or number.
(1) The right to issue the certificate of registration of the design rights arising from the registration of the design as well as rights arising from registration are transferable in whole or in part.
(2) The transfer may be made by succession, assignment or license.
(3) The transfer shall be recorded in the Register OSIM designs and enforceable against third parties only from the date of publication in the Official Bulletin of Industrial Property of OSIM transfer mention.
(4) The registration of transfer of rights to the design in dispute is suspended until the date of the final judgments on them.
(1) The author, holder of the certificate of registration of the design, enjoy patrimonial rights established under contract with people who exploit the design.
(2) In the event of an assignment contract, the author's economic rights are established in this contract.
International applications under the Hague Agreement shall be submitted to the World Intellectual Property Organization, directly or through OSIM
(1) The author has the right to be named, first name and the certificate of registration, and any other documents or publications on design.
(2) The data in the registration certificate shall be recorded in the job.
(1) registration of the design may be withdrawn, in whole or in part, at the request of an interested person, for the reasons set out in art. 22 para. (3).
(2) Cancellation may be requested throughout the duration of the certificate of registration and judging by the Bucharest Tribunal.
(3) The cancellation decision shall be registered with OSIM and shall be published not later than two months from the date of registration.
Disputes concerning the authorship of the design, the grant of a certificate of registration, those concerning the economic rights arising from assignment or license contracts are the jurisdiction of the courts under civil law.
Community designs shall be protected in Romania under the Council Regulation no. 6/2002 / EC on Community designs published in the Official Journal of the European Communities no. 3 of 5 January 2002.
Applications for Community designs may be filed directly with the Office for Harmonisation in the Internal Market or through OSIM
When a request for a Community design is filed with OSIM under Art. 35 of Regulation no. 6/2002 / EC, OSIM register receipt on request, and without examination, shall transmit to the Community Office within two weeks by paying a fee in the amount of $ 70.
Litigations on Community designs, which Regulation no. 6/2002 / EC conferring jurisdiction on the courts of Community designs according to art. 80 para. (1) of the Regulation, the competence of the Bucharest Tribunal, which resolves cases in first instance.
Chapter VI Powers of the State Office for Inventions and Trademarks in the field of design protection
OSIM is the specialized government body with sole authority in Romania, which protects designs.
OSIM has the following responsibilities in the field of design protection:
A) granting protection through the certificate of registration of designs;
B) keeping the Register of Applications and the Register of designs;
C) carry out the request, documentary on designs published and mediation services;
D) maintain relations with equivalent government organizations and with specialized international organizations to which Romania is a member;
E) inform the European Commission about the national provisions adopted to transpose the provisions of Directive 98/71 / EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs;
F) shall, upon request, assist industrial property, organize training courses for specialists in the field;
G) edits and publishes regularly in the Official Industrial Property Bulletin of OSIM data on designs.
LIABILITIES AND SANCTIONS
(1) unlawful assumption, in any way, the quality of creator of the model or an offense punishable by imprisonment from 3 months to 2 years or a fine.
(2) Reconciliation removes criminal liability.
Where, by a judgment, it is established that a person other than the one indicated in the registration or registration certificate is entitled to the certificate of registration, certificate of registration OSIM entitled person and publish change of ownership.
(1) Committing without the right of any act referred to in art. 30 after design registration, constitutes the offense of counterfeiting punishable by imprisonment from 3 months to 2 years or a fine.
(2) Reconciliation removes criminal liability.
(1) If the holder of a registered design or model, or any person exercising the right of industrial property with the owner's consent credible evidence that an industrial property right to the Community design subject to unlawful actions, actual or imminent and that action likely to cause him damage difficult to repair, the court may request interim measures.
(2) The court may order in particular:
A) temporary prohibition of abuse or its cessation;
B) take the necessary steps to preserve evidence. Applicable provisions of the Emergency Government Ordinance no. 100/2005 regarding the enforcement of industrial property rights, approved with amendments by Law no. 280/2005, as amended and supplemented.
(3) applicable procedural provisions contained in the Code of Civil Procedure concerning provisional measures in the matter of intellectual property rights.
(4) The interim measures may be ordered against an intermediary whose services are used by a third party to infringe a right protected by this law.
Customs authorities may order, either ex officio or at the request of the holder of the registered design, suspension of customs clearance on the importation of goods, in cases provided for in art. 53 until sentencing.
Certificates of registration of designs in force represent intangible assets and may be registered in the estate of the owner, a legal entity.
(1) At the request of the court, OSIM shall submit the papers, documents and information necessary for judging the cause was invested.
(2) all disputes on designs summoning holders is required.
* This Law *) transposes the provisions of Directive 98/71 / EC on the legal protection of Community designs published in the Official Journal of the European Communities no. 289 of 28 October 1998, and creates a framework for the direct application of Romania's accession to the European Union Regulation No. 6/2002 / EC on Community designs published in the Official Journal of the European Communities no. 3 of 5 January 2002. --------
*) The term on the transposition of Community rules provided by Law no. 280/2007 amending and supplementing Law no. 129/1992 published in the Official Gazette of Romania, Part I, no. 729 of 26 October 2007.