Intellectual property: Council adopts two positions on designs protection legislation

The Council has today adopted its positions (‘general approaches’) on the proposed revision of the designs legislation package: the directive on the legal protection of designs and the regulation on community designs. Updating the 20-year-old designs legislation, the new texts aim at facilitating the protection of industrial designs and adapting EU law in this area to the challenges of a digital and 3D-printing worlds.

Designs protection in the digital era

An industrial design constitutes the external appearance of a product. The visual appeal created by a design is one of the key factors influencing a consumer’s choice in preferring one product over another. Good design constitutes an important competitive advantage for producers and increases the value of the product. Consequently, designs need to be protected against copies or imitations.

The proposed directive and regulation update current legislation, which dates from 1998 and 2002 respectively, and will make easier the procedure to register designs at EU level and will further harmonise the procedures between European and national systems. The directive also introduces new rules to protect designs that can be reproduced with 3D printing.

Most importantly, the revision aims at further harmonising the design protection for component spare parts used for the repair of complex products (e.g. car body parts). This step will liberalise the spare parts market, thereby delivering lower prices for consumers. This ‘repair clause’ is conceived only for future designs, but it will, however, maintain the protection of existing designs for a period of ten years.

The Council’s mandate

The Council supports the main objectives of the package (i.e. it keeps the concept of the ‘repair clause’ as proposed by the Commission), but introduces several improvements 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

Next steps

The general approach agreed today formalises the Council’s negotiating position. It provides the Council presidency with a mandate for negotiations with the European Parliament, which will start as soon as the Parliament adopts its position.

Background

Design-intensive industries represent almost 16% of GDP and 14% of all jobs in the Union. On 10 November 2020, the Council called the Commission to present proposals to modernise the EU design protection systems, which was almost 20 years old. On 28 November 2022, the Commission published a package of measures with two proposals: a Regulation amending Council Regulation (EC) No 6/2002 on Community designs and a Directive on the legal protection of designs (recast of Directive 98/71/EC).