Thanks to Angelo Aimar for collaborating on this article
Twenty years after the last substantive reforms of the European legal framework for design protection, on November 29, 2022, the European Commission (hereinafter, “EC”) published its proposals for a revised Designs Directive (Dir. 98/71/EC) and Community Design Regulation (Council Regulation (EC) No 6/2002) (together, the “Proposals”).
The evaluations conducted by the EC in line with its Better Regulation agenda led to two proposals.[1] According to the EC, the reform is intended to modernize design protections for the digital age and to ensure that throughout the European Union design registrations are made more accessible in terms of cost, complexity, and time.
With that in mind, the Proposals contain a set of reforms that consider the latest digital innovations, starting with broader definitions of design and product. Should the reform pass, the former will include movement, transition, or any other sort of animation of features that can contribute to the appearance of designs, while the latter will be defined as “any industrial or handicraft item other than computer programs, regardless of whether it is embodied in a physical object or materializes in a digital form.”[2] These two expanded definitions would therefore grant design protection to graphic user interfaces (known as “GUI”), 3D animated designs, and digital designs, so that the design legal framework would be adjusted to fit the metaverse.
Furthermore, in line with relevant case law, the Proposals would remove the requirement for a design that is a component of a complex product to remain visible in the course of normal use in order to be granted design protection, but visibility would still be required at the time of the design application. Moreover, in an effort to reduce the waste of spare parts and to enhance the lifespan of products, the Proposals also include a “repair clause” aimed at harmonizing the divergent legal frameworks of the Member States for components of complex products. In particular, under the Proposals, “must-match” spare parts will not be granted protection when they can be used to repair the relative complex products.
In addition, the EC introduced new exclusive design rights. In particular, the Proposals contain provisions for enhanced and tailored protection for unlawful 3D printing that would allow recourse not only against physical infringement, but also against the creation, downloading, and sharing of software that records a protected 3D design. The Proposals also provide an opening for protection against goods in transit. These provisions would allow rightsholders to enforce their rights against goods that are merely passing through the EU, regardless of whether or not they hold rights in the country of origin or of destination of the goods.
The revised Designs Directive and Designs Regulation proposals will now go through the ordinary legislative procedure before the European Parliament and the Council.
[1] Commission Staff Working Document, Impact Assessment Report Accompanying the documents to the Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 6/2002 on Community designs and repealing Commission Regulation (EC) No 2246/2002 and the Proposal for a Directive of the European Parliament and of the Council on the legal protection of designs, released on November 29, 2022, accessible here.
[2] European Commission, Proposal for a Directive of the European Parliament and of the Council on the legal protection of designs, Art. 2
