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3. LEGAL ELEMENTS OF THE RECOMMENDATION
The Basic Proposal on the Design Law Treaty
The objective of the Design Law Treaty is to harmonise certain procedural aspects and
formalities of industrial design applications. For example, it deals with the different steps for
filing an application, the publication of applications, the grace period, the representation of
the design in the application, the description, and the obligation to record licences in the
intellectual property registers. However, it does not concern questions of substantive law (the
definition of a design, the conditions of validity, or the scope of protection).
The Design Law Treaty contains primarily procedural provisions on definitions (Article 1),
general principles (Article 1bis), scope of application (Article 2), content of design
applications (Article 3), representation (Article 4), rules for the according of a filing date
(Article 5), rules for the grace period for filing design application in the event of earlier
disclosure (Article 6), requirement to file the application in the name of the creator (Article 7),
amendments and divisions (Article 8), publication of the design (Article 9), communications
(Article 10), content of requests for renewal (Article 11), relief measures in respect of time
limits (Articles 12-13), correction or addition of priority claims (Article 14), requests for
recording a licence and effects of non-recording of a license (Article 15-17), indication of the
licensee (Article 18), recording change of ownership (Article 19), changes in names or
addresses (Article 20), correction of mistakes (Article 21), technical assistance to contracting
parties (Article 22), and the Regulations annexed to the Treaty (Article 23).
Furthermore, Article 3 of the Design Law Treaty would allow the contracting parties to
require applicants to disclose the origin or source of traditional cultural expressions,
traditional knowledge, or biological/genetic resources utilised or incorporated in the industrial
design. Although this is different in nature from the mandatory disclosure requirement
proposed in the GR instrument, which contracting parties would be required to introduce into
their domestic laws, it could still have disruptive effects on obtaining design protection in the
jurisdictions that choose to implement it.
The administrative provisions and final clauses contain the institutional framework that will
govern the Design Law Treaty. This includes the Assembly, where contracting parties will be
represented and they will deal with all matters concerning the maintenance and development
of the Treaty, among other tasks (Article 24), and the International Bureau of WIPO, which
will be required to perform the administrative tasks concerning the Treaty (Article 25).
Rules are also set out on revision of the Design Law Treaty (Article 26), eligibility to become
a party (Article 27), entry into force (Article 28), denunciation (Article 30), languages,
signature and depositary (Articles 31-32).
The Design Law Treaty will benefit creative industries and industrial designers, in particular,
by making the international registration of designs easier and more predictable. The disclosure
requirement however could be considered to be incoherent with procedural rules on industrial
design procedures.
EU competence
A preliminary assessment of the EU's competence needs to be carried out before negotiations
start on the Design Law Treaty text at the Diplomatic Conference. The preliminary
assessment does not affect the final assessment of the EU's competence that should be carried
out once the negotiating parties have agreed on the text. In this regard, Articles 3(1) and 3(2)
of the Treaty on the Functioning of the European Union (TFEU) are of relevance when
deciding on EU’s competence as regards the Design Law Treaty.