Insights European Commission publishes proposals for revised Directive and Regulation on designs

The Commission says that its proposals will make it cheaper, quicker and more predictable to protect industrial designs across the EU. They modernise the existing Community design framework and national design regimes, created and harmonised 20 years ago, and introduce a more balanced approach to design protection. The proposals also ensure that designs can be reproduced for spare parts, allowing consumers more choice in repairing complex products, e.g. cars.

The Commission first announced that it would revise EU legislation on design protection in its Intellectual Property Action Plan adopted in November 2020. The Commission’s evaluation of EU design law showed that, although design protection systems in the EU were functioning well overall, there were nevertheless some shortcomings that needed to be addressed.

The Commission says that the proposals will:

  • simplify and streamline procedure for EU-wide registration of a design: by making it easier to submit designs when applying for registration, e.g. by submitting video files, or combining more than one design in an application, as well as by lowering the fees to be paid for the first ten years of protection;
  • harmonise procedures and ensure complementarity with national design systems: the new framework aims to ensure greater complementarity among EU level and national design protection rules, e.g. in respect of requirements for registering designs or simplifying rules for invalidating registered designs, to create a level playing field for businesses across Europe; and
  • allow the reproduction of original designs for repair purposes of complex products: by introducing an EU-wide “repair clause” into the Design Directive, the new rules will help to open up and increase competition in the spare parts market; this is important in the car repair sector where it will be legal in all EU countries to reproduce identical “must match” car body parts for repair to restore its original appearance; the proposed “repair clause” will have instant legal effect for future designs only and designs already granted protection will remain covered for a transitional period of ten years.

The draft Regulation (Article 96) and draft Directive (Article 23) also change the overlap between copyright and design protection, by stating that designs can be protected by copyright “provided that the requirements of Union copyright law are met”.  The ability for Member States to determine the extent to which, and the conditions under which, such protection is conferred is deleted.

The proposals will be submitted to the European Parliament and the Council for adoption under the ordinary legislative procedure. Once adopted, EU Member States will have to transpose the new rules of the Directive into national law within two years. As for the Regulation, most amendments to the current Community Design Regulation will become applicable three months after its entry into force, while the rest will apply when the necessary delegated and implementing acts are enacted (18 months after entry into force). To read the Commission’s announcement in full and for links to the proposed texts, click here.