The EU Designs Directive (98/71/EC) harmonised requirements for registered design protection in the European Economic Area. Alongside that, 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 the protection of unregistered Community design right, a right which automatically comes into existence by making products incorporating the design available to the public within the EU. 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). Details of the Commission’s proposals, the subsequent amendments proposed by the EU Parliament and Council, and the provisional agreements reached by the Parliament and Council in December 2023, were previously reported by Wiggin here, here and here.

On 14 March 2024, the Parliament formally adopted the provisional agreements agreed with the Council in December. These include a provision that the design for a product, currently defined as the appearance of the whole or part of a product resulting from its features, will now include the “movement, transition or any other sort of animation” of the design’s features. A “product” means any industrial or handicraft item but this is now qualified by “regardless of whether it is embodied in a physical object or materialises in a non-physical form”, and includes the “spatial arrangement of items intended to form an interior or exterior environment” and graphical user interfaces. Reproductions of elements belonging to cultural heritage that are of national interest cannot be registered. A registered EU design will be protected for 5 years, and this protection can be renewed for 5-year periods for a maximum of 25 years. The headline registration fee will be €350, with a sliding scale of renewal fees, increasing at each renewal, designed to motivate individual designers and small and medium-sized companies to protect their designs.

The Commission also made proposals concerning a key aspect of the current legislation, the right to repair products protected by registered designs. 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 intended to encourage competition in the market for spare parts. However, this does not apply in Member States which grant design protection for spare parts. The Commission proposed that this provision should now apply permanently to all Member States. The provisional agreements from the Parliament and Council support the Commission’s approach but make some tweaks to the Commission’s wording. Designs of spare parts already protected in relevant Member States would remain so for a period eight years from the date of entry into force of the Directive (the Commission had proposed a transitional period of 10 years). Further, the provisional agreements provide that the right cannot be invoked by a manufacturer or seller of a component part who failed to inform consumers about the “commercial” origin and the “identity of the manufacturer” of the product to be used for the purposes of repair of the complex product, so that they can make an informed choice between competing products that can be used for repair.

The majority of the CRD changes would be applicable throughout the EU four months after the date of entry into force, while others have a transition period of 18 months, whereas Member States would have 3 years to take the necessary measures to transpose the Directive into national law.

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