November 23, 2023
The EU Designs Directive (98/71/EC) harmonised requirements for registered design protection in the European Economic Area. The Community Designs Regulation (6/2002/EC) (“CDR”) created a regime for protecting designs throughout the EU, similar to the EU trade mark, by creating a system of registration administered by the EUIPO. It also created a system for protection of unregistered Community design right, a right which automatically comes into existence by making products incorporating the design available to the public. The substantive provisions of the CDR reflect those of the Directive.
In November 2022, the Commission published proposals to modernise designs law by proposing several changes to the Directive and the CDR (including renaming Registered and Unregistered Community Designs as Registered and Unregistered EU Designs). The proposals include changes to reflect technological advancements, such as the expansion of the definition of a “design,” which covers the appearance of a product, to include “the movement, transition or any other sort of animation” of the features of the appearance of a product. Similarly, it proposes to expand the definition of a “product” to include digital products (e.g. graphical user interfaces). It also proposes to clarify that that 3D printing in relation to a protected design could amount to infringement if done without consent.
The Commission also made proposals concerning a key aspect of the current legislation, the right to repair products protected by design rights. Current legislation provides a temporary provision that, subject to certain conditions, design protection is not conferred on a design which consists of a component part of a complex product (upon whose appearance the design of the complex product is dependent) when used for the sole purpose of the repair of that complex product so as to restore its original appearance. This is effectively a defence to an infringement claim. The Commission is seeking to make this provision permanent with a view to increasing competition in the spare parts market.
In September 2023, the Council for the EU adopted its position on the Commission’s proposals (reported previously by Wiggin). The Legal Affairs Committee (JURI) of the European Parliament has since published its proposed amendments to the Commission’s proposals. Like the Council, the Committee takes a generally favourable view of the Commission’s proposals but proposes certain adjustments to the text. The most important of these is replacing the requirement to duly inform consumers as to “the origin of the product” used for repair, an obligation which the Committee considers to be vague, to an obligation to duly inform consumers of “the identity of the manufacturer of the product” to include the name of the manufacturer, the registered office address and, where appropriate, telephone number and email address. This is to enable consumers to make an informed choice between competing products that can be used for the repair.
Parliament has accepted the Committee’s proposed amendments and will now enter informal negotiations (trilogues) with the Commission and the Council with the aim of agreeing the final version of the new law.