In Portuguese CPI (Articles 173 ff) we only have registered designs, and the UE reform didn’t reach the Portuguese law yet. Protection through design is a very interesting way of protecting the visual appearance of a dish, or other types of protection of food presentation. Nevertheless, because most recipes come from generations, and are usually shared, in many cases the requirements of novelty and/or of individual character are difficult to fulfill.30 VI. CUMULATIVE PROTECTION BY COPYRIGHT AND DESIGN In the EU, and in Portugal, designs, works of applied art and works of design can have cumulative protection by copyright and industrial property rights. The exterior appearance of a product can be protected as work, by copyright, and as design, by industrial property. Article 96 (2) of Council Regulation (EC) 6/2002 of 12 December 2001 on Community designs,31 already dealt with cumulation of protections, and a similar approach can be seen Article 96 (2) of amended version introduced by EUDR. Article 17 of Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs32 (DD) 30 According to Articles 4, 5 and 6 we find the concepts of novelty and individual character. Article 4 (1) of EUDR states that “A design shall be protected by an EU design, if it is new and has individual character”. There were no substantial changes in the concepts of novelty and individual character, as we can see reading the amended version of Regulation 6/2002, available at Consolidated TEXT: 32002R0006 — EN — 01.05.2025. Article 5, (1) determines that “design shall be considered to be new if no identical design has been made available to the public:(a) in the case of an unregistered European Union design, before the date on which the design for which protection is claimed has first been made available to the public; (b) in the case of a registered European Union design, before the date of filing of the application for registration of the design for which protection is claimed, or, if priority is claimed, the date of priority”. According to (2) of the same Article, “designs shall be deemed to be identical if their features differ only in immaterial details”. Article 6 deals with individual character. According to (1), a “design shall be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public:(a) in the case of an unregistered European Union design, before the date on which the design for which protection is claimed has first been made available to the public; (b) in the case of a registered European Union design, before the date of filing the application for registration or, if a priority is claimed, the date of priority”. Article 6, (2), determines that in “assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration.” The EUDD also doesn’t change these concepts. Articles 175, 176 and 177 CPI have identical concepts of novelty and individual character for Portuguese registered design. 31 OJ L 3, 5.1.2002, p. 1–24. According to the consolidated text, Article 96 (2) now stated that “design protected as an EU design shall also be eligible for protection by copyright as from the date on which the design was created or fixed in any form, provided that the requirements of copyright law are met”. 32 OJ L 289, 28.10.1998, p. 28–35 233 HOW TO PROTECT FOOD PRESENTATION BY INTELLECTUAL PROPERTY
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