By Roman Brtka, ECTA Design Committee member, Bird & Bird, Germany

In the ongoing design law reform process the Council and the European Parliament reached a provisional agreement on 5 December 2023 to modernise Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs and Directive 98/71/EC on the European Parliament and of the Council of 13 October 1998 on the legal protection of designs.

The design reform aims to make design protection more affordable, faster, and predictable and to address the challenges of 3D printing and digital transformation. For these very reasons, on 28 November 2022, the European Commission published a reform package of measures with two proposals to modernise the EU Design Protection System (i.e. Regulation No 6/2002 and Directive 98/71/EC).

The text of the provisional agreement was published on 21 December 2023 and the main elements of the agreement are as follows:

New name

There will be a change in terminology: The terms Registered Community Design and Unregistered Community Design will be replaced by Registered EU Design and Unregistered EU Design.

Scope of protection

The definitions of “design” and “product” have been amended in order to cover the digital and 3D printing scenario. The definition of “design” includes items such as “movement, transition or any other sort of animation of those features”. A “product” might be embodied in a physical object, or it can materialise in a digital non-physical form (e.g. spatial arrangements of items like interior or exterior environment and graphic user interfaces). Further, under certain circumstances, a design might also be infringed by creating, downloading, copying and sharing or distributing to others any medium or software recording the design.

Repair clause

The repair clause will exclude replacement parts for a complex product which are used to restore its original appearance from design protection. The exception only applies to repair purposes and the appearance of the replacement part must be identical to the original part. Consequently, design protection will no longer be conferred to “must-match” spare parts, whose appearance depends on the appearance of the original product. The transitional period for the introduction of the “repair clause” will be eight years.

Fees

The fees for design protection at EU level are to be increased and they will be higher than for design protection at national level in order to reflect the larger territorial scope of EU-wide design protection.

Cultural heritage

Under the new laws it will be forbidden to protect cultural heritage elements of national interest (e.g. traditional costumes of a region) as private designs. The term “cultural heritage” is to be defined in line with UNESCO’s definition of “cultural heritage”.

Next steps

The provisional agreement reached by the Council and the EU Parliament now needs to be endorsed and formally adopted. The new law will probably enter into force in the first half of 2024. Once adopted, the EU Member States will have 36 months to adapt their local laws to the provisions of the new directive. Most adjustments to the Regulation will take effect three months after its entry into force, while some other amendments will have a longer application period of up to 18 months.

To find out more, read the press release here.