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Europe : design disclosure in China makes protection as Unregistered Community Design impossible

The German Federal High Court has issued a decision stating that a design first published in China and later used commercially within the territory of the European Community was not eligible for protection as an Unregistered Community Design (UCD).
The plaintiff was claiming protection of the design as an UCD on the grounds that, following the creation of the said design for a new biscuit press and its registration by the State Intellectual Property Court (SIPO) of China, the design had been used commercially in the United Kingdom immediately after its publication.
The Community Design Regulation (CDR) stipulates the following:
* a design which meets the requirements for protection (i.e. novelty and individual character) shall be protected by an UCD for a period of three years as from the date on which the design was first made available to the public within the Community (Article 11)
* a design which has not been made public within the territory of the Community shall not enjoy protection as a UCD (Article 110a)
* the requirements for protection are not met in the case that an identical design has been made available to the public within the Community before the design for which protection is claimed (Articles 5 and 7)
The Court ruled that the plaintiff, by selling the related biscuit press in the UK, had made the design available to the public within the Community as provided under articles 11 and 110a of the CDR; however, since the design had lost its novelty as provided under articles 5 and 7 of the CDR due to its publication by the SIPO, protection as an UCD must be refused.
This decision of the German Federal Supreme Court confirms that a design which has been originally disclosed outside of the territory of the European Community is barred forever from protection as an UCD.

Reference:
http://oami.europa.eu/ows/rw/resource/documents/RCD/case-law/gebaeckpresse.pdf
AIPPI　(2009) Vol. 54 No. 2