07.10.2020: A product may be protectable as a design for which a technical protection right exists at the same time
The protectability of a product as a (Community) design (or "design") is not precluded by the fact that a technical protection right (e. g., a patent) has been applied for or granted for same product.
The claims, descriptions and drawings of the parallel patent disclosure for a product are among the objective circumstances relevant to the individual case, which are to be assessed when examining whether appearance features are exclusively due to the technical function of the product.
The patent disclosure may provide information as to which features of the product implement the technical teaching underlying the patent and are therefore at least also technically determined. However, the absence of considerations on the visual appearance of the product in a patent disclosure does not in itself allow the conclusion that an appearance feature is exclusively technical, any more than the presence of considerations on its technical function.
Rather, in both cases it must be examined whether circumstances outside the patent disclosure indicate a visual conditionality of the appearance feature in question.
Practical tip:
In principle, the possibility of applying for comprehensive product protection with different types of protective rights (in this case design and patent) is confirmed here.
However, the prerequisite for this is that the respective criteria, which can also be formulated in the opposite way, are complied with. A strategy is therefore also required here as to what is presented as highlighted in the respective IP right applications.