Cape Verde gets its priorities right

The Designs (Convention Countries) (Amendment) Order 2009 (SI 2009/2747) coming into force on 12 November 2009, adds Cape Verde to the lists of Convention countries from which priority may be claimed in the UK.
For more background, see David Pearce's page on s13 f the Registered Designs Act 1949, on the Design Law Wiki.

New UK design practice note on priority

The UK IPO has today posted a new practice notice, Designs Practice Notice DPN 1/09, on a simplified priority claim procedure. Here are CIPA's Designs and Copyright Committee comments on a draft version, by way of background.
Essentially, where you're just filing the identical design in the UK, you can so declare on a special form and thus avoid the need to file a certified copy. Interesting issues arise in relation to the difference (if there is one) between identical representations and an identical design, which the IPO discuss in their DPN. There may also be unresolved questions about the effect of other elements of a design application, such as the identified goods/title.
By way of background, courtesy of the IPO, of UK designs filed in Q1 2009, only 4.1% had convention claims (of these 40% were filed by unrepresented applicants and 60% through agents) as opposed to more than 50% before the introduction of the Community design system. Thus, though a welcome simplification, this measure is unlikely to have major impact on most design system users.

Colour and priority

An interesting OHIM invalidation case is reported in the latest Alicante News. The contested RCD was in colour. A cited RCD (monochrome but otherwise identical) was filed later but claimed an earlier priority - from a colour Chinese application.
On priority, OHIM found that the cite validly claimed priority since all elements were present within the priority document. On conflict with the cite, they found that the monochrome cite covered all colours. Thus, the RCD infringed the cite, and was invalid. They compare the case with their earlier decision (also reported in Alicante News) finding a colour design lacked priority from a monochrome priority application.
These decisions set up a complex legal pattern, given that (a) some countries don't allow colour any part in design registrations, and (b) some don't issue colour copies of priority documents. Nonetheless, if OHIM's analysis is correct (and I am not wholly convinced) then there are clear benefits to filing in monochrome except where the colour really does make a significant difference to the design.

UK Designs - Priority Practice Change

The UK IPO announced at the most recent RPWG meeting that it is considering changing its practice to permit filing a declaration that the design is identical to a claimed priority filing, so as to avoid the need to file a certified priority document. Sounds sensible enough, but are substantive and procedural differences worldwide so great that a similar form would have a dissimilar effect and vice versa? And is it right that third parties should be unable to look at the priority document?
Comments welcomed, either here or to me.

Exhibition Priority

Was ever a more dangerous, less useful concept enshrined in IP law than exhibition priority? As OHIM's Presidential Communication 1/03 says "only a very small number of exhibitions, in particular world exhibitions, fall under this provision" - it is more often claimed incorrectly than correctly. A rare patent case, T 0382/07, looked at an exhibition priority claim in a European patent, which had been filed as an international application, and concluded that the European Patent Convention did not allow exhibition priority, even though the Paris Convention and the WIPO Patent Cooperation Treaty permitted it, and the applicant's country of origin (where the PCT was filed) provided it. That analysis (applicable law is that of the designated state not the state of origin) would seem also to apply to Hague Agreement international designs. Had this been a design case, OHIM would have accepted the priority claim in respect of the European designation, but the many national offices which do not have exhibition priority would not. The applicant's own disclosure would still, I guess, be protected via a grace period where there is no exhibition priority, but intervening third party disclosures (as occurred in this patent case) would be lethal. The take-home message: don't rely on "exhibition priority" outside the shores of Europe.