Design rights are increasingly recognised as key to bringing ideas to the market and transforming them into user-friendly and appealing products or services. Well-designed products create an important competitive advantage for producers and companies that invest in design tend to be more profitable and grow faster. To encourage producers to invest in designs, there needs to be accessible, modern, and effective legal framework for the protection for design rights.
The current industrial design protection system in the EU is more than twenty years old. The laws of the member states relating to industrial designs were partially aligned by Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998. Alongside the national design protection systems, Council Regulation (EC) No 6/2002 of 12 December 2001 established a stand-alone system for protecting unitary rights that have equal effect throughout the EU in the form of the Registered Community Design (RCD) and the unregistered Community design.
European Commission’s evaluation report in relation to EU legislation on design protection
The European Commission carried out an evaluation of the directive and regulation, which was published in November 2020.The evaluation concluded that the design protection in the EU was still largely fit for purpose, however, the evaluation revealed some shortcomings that needed to be addressed to make the legal framework fit to support the digital and green transition of EU industry, and to become substantially more accessible and efficient for industries, SMEs and individual designers. These shortcomings included a lack of clarity and robustness of certain key elements of design protection, outdated or overly complicated procedures, inappropriate fee levels and fee structure, lack of coherence of the procedural rules and an incomplete single market for spare parts.
Further information on the Commission's evaluation of EU legislation on design protection
Based on the findings of the evaluation, the Commission conducted an impact assessment which identified possible policy options to address the problems identified with the legislation. On 28 November 2022, the Commission published a reform package on industrial design protection, consisting of:
Directive (recast) of the European Parliament and of the Council to approximate the laws of the Member States relating to industrial designs
Regulation amending Council Regulation (EC) No. 6/2002 on Community Designs and repealing Commission Regulation (EC) No 2246/2002
The main objectives of the package include:
- modernise existing provisions to clarify rights in terms of scope and limitations
- simplify and streamline the process of registering designs in the EU
- adjust and optimise the level and structure of payable fees
- harmonise procedures and ensure they complement national design systems
- allow the reproduction of original designs for repair purposes of complex
- products (such as cars) with an EU-wide 'repair clause'
Current position
On 25 September 2023, the Council adopted its position (‘general approaches’) on a recast directive on the legal protection of designs and an amended EU regulation on Community designs following months of negotiations with EU member states. The new Council texts introduce several improvements to the Commission proposal, including:
- an update of the definition of ‘design’ and ‘product’ to make them fit for the digital age and for future technological developments. For instance, ‘digital’ is replaced by ‘non-physical’
- a simplification of the requirements to represent the design, so that even if, at the date of the request, some documents are missing, the design can still be registered on that date, provided that the representation of the design is clear enough
- the introduction of flexibility for designers to be able to defer the time of publication of their design to a maximum of 30 months, with the possibility for member states to give the option to the holders of the design rights to stop the deferment at their request (and not at the end of the deferment period)
- a clarification of the rules to declare design rights invalid, with the possibility for member states to provide for an administrative procedure of appeal, so that parties do not need to go to court
- the assurance that the fees for national-only protection should continue to be cheaper than European ones
- the possibility to cumulate the protection of designs and copyright, including national copyright laws
- a transposition period of 36 months (instead of 24) to give more time to member states to take the necessary measures to apply the new legislation
The Council’s General Approach provides a mandate for negotiations with the European Parliament and for the EU Trilogue process that commenced on 15 November 2023.