The current legislation on the legal protection of designs and models in the European Union is more than 20 years old (Council Regulation (EC) No 6/2002 on Community designs and the Directive on the legal protection of designs and models, a recasting of Directive 98/71/EC).
These two decades of validity of this reference regulation have allowed the harmonisation of national regulations and a boost to this form of protection throughout the European Union, which accumulates more than 1 million design registrations in the EU.
However, the passage of time has also brought to light certain modifications that were necessary, and with this objective in mind, in 2022 the European Commission began the project to update the regulations governing Designs and Models in the EU.
The key point in this process took place about 3 months ago with the provisional agreement on the revision of the two legislative proposals, the Legal Protection Directive and the Community Design Regulation. Although this agreement has yet to be endorsed, and subsequently transposed in each State over a period estimated at 36 months, it is already possible to see the main novelties that will be included in the new Directive and Regulation on Designs and Models, which is getting closer and closer.
Surely, the novelty that has had most media relevance is the one related to the so-called Repair Clause, with regard to the protection of designs and models of the spare parts of a complex product that are used to restore its original appearance. This amendment/clarification has long been sought by the spare parts sector (mainly the automotive aftermarket sector) as they saw a limitation for their business, a disproportionate exploitation of vehicle manufacturers and an undermining of the rights of end-users who were obliged to turn to (more expensive) official spare parts to restore their product to its original appearance after a damage to it.
The new Directive seeks to balance the interests of these end-users, the owners of the original designs and the spare parts industry by excluding design protection for spare parts of a complex product that are used to restore its original appearance, but only for repair purposes and only if the spare part is exactly the same as the original part. According to the European Commission, by making these spare parts more accessible for repairs, this can generate between 340 and 544 million euros in savings for consumers, over a period of time spanning 10 years.
Although this amendment was the most eagerly awaited in this update of the legislation governing Designs and Models, work has also been done on clarifications and harmonisations of definitions and new areas of protection such as product animations that have been considered to contribute to the appearance of designs.
More updates on the new design protection legislation
Another point, perhaps more technical and which is a workhorse in processes of examining the validity of the registered design, is the visibility of the design in normal use. The new text will only require the design to be visible on application, but not subsequently in everyday use. This will not apply to designs which are part of a complex product and which cannot be seen once assembled in normal use.
Protection has also been strengthened for symbols of public interest so that they cannot be appropriated by any applicant, where this definition is based on the UNESCO definition.
And, after the boom in 3D printing and the rapid emergence of Artificial Intelligence, attempts to protect rights against illegitimate copies of suitably registered products in these areas could not be missing in this regulatory update. In this regard, the Commission has included that the creation, downloading, copying, as well as making possible the recording in any medium or software of the design with the aim of reproducing it must be carried out with the authorisation of the holder of the registration.
With all of the above, the formal approval of the Directive and its Regulation is expected in the coming months, with a process of transposition and entry into force of this new regulation ahead of us, which will allow us to establish a common framework in the EU so that the necessary protection of the designs and models created by users can continue to grow.
Article by Xavier Prados.
