Design rights are increasingly recognised as key to bringing ideas to the market and transforming them into user-friendly and appealing products or services. Well-designed products create an important competitive advantage for producers and companies that invest in design tend to be more profitable and grow faster. To encourage producers to invest in designs, there needs to be accessible, modern, and effective legal framework for the protection for design rights.
The current industrial design protection system in the EU is more than twenty years old. The laws of the member states relating to industrial designs were partially aligned by Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998. Alongside the national design protection systems, Council Regulation (EC) No 6/2002 of 12 December 2001 established a stand-alone system for protecting unitary rights that have equal effect throughout the EU in the form of the Registered Community Design (RCD) and the unregistered Community design.
European Commission’s evaluation report in relation to EU legislation on design protection
The European Commission carried out an evaluation of the directive and regulation, which was published in November 2020.The evaluation concluded that the design protection in the EU was still largely fit for purpose, however, the evaluation revealed some shortcomings that needed to be addressed to make the legal framework fit to support the digital and green transition of EU industry, and to become substantially more accessible and efficient for industries, SMEs and individual designers. These shortcomings included a lack of clarity and robustness of certain key elements of design protection, outdated or overly complicated procedures, inappropriate fee levels and fee structure, lack of coherence of the procedural rules and an incomplete single market for spare parts.
Further information on the Commission's evaluation of EU legislation on design protection
Based on the findings of the evaluation, the Commission conducted an impact assessment which identified possible policy options to address the problems identified with the legislation.
Reform package
On 28 November 2022, the Commission published a reform package on industrial design protection to address the shortcomings identified with the legislation, consisting of a:
Directive (recast) of the European Parliament and of the Council to approximate the laws of the Member States relating to industrial designs
Regulation amending Council Regulation (EC) No. 6/2002 on Community Designs and repealing Commission Regulation (EC) No 2246/2002
Following negotiations with EU member states on the Commission’s reform package, the Council adopted a ‘general approach’ on both the Directive and the Regulation on 25 September 2023. The general approach provided a mandate for the EU Trilogue process.
On 10 October 2024, the Council approved the two legislative texts under the EU design reform package:
The two legal instruments form the main elements of the legal protection of designs in the EU and modernise the 20-year-old legal framework. The reform package provides for an accessible, modern, and harmonised legal framework for the protection of design rights, with increased legal certainty and predictability for its users.
Key elements of the reform package
- Broader definitions of 'product' and 'design': the definition of a design now includes the movement, transition or any other sort of animation of the design’s features; the definition of product has been updated to include industrial and handcraft products, regardless of whether it is embodied in a physical object or materialises in a non-physical form.
- Changes to harmonise the rules of representation for national designs so that they are in line with the current rules for EU registered designs.
- Extension of the scope of protection of design rights to help combat illegal 3D printing: it is now an infringement of design rights to download, copy and share or distribute to others any medium or software that records the design for the purpose of making a product protected by the design.
- Design protection against counterfeit goods in transit in the EU: the holder of a registered EU design shall be entitled to prevent all third parties from bringing products from third countries into the EU even if they are not intended to be placed on the EU market.
- Introduction of a harmonised exception to design protection for spare parts of complex products – a 'repair clause' in the directive: design protection shall not be conferred to component parts of a complex product upon whose appearance the design of the component part is dependent, and which is used for the sole purpose of the repair of that complex product so as to restore its original appearance. EU member states who currently provide design protection for spare parts, for which registration was applied for before 8 December 2024, can continue to provide this protection until 9 December 2032.
- No visibility requirement: design features of a product do not need to be visible at any particular time or in any particular situation of use in order to benefit from design protection (with the exception of component parts of a complex product).
- Multiple design applications are also allowed for different products even if the products do not belong to the same class in the Locarno Classification.
- Option for EU member states to introduce administrative invalidity proceedings before national IP offices.
- Cultural heritage: EU member states may also provide that a design can be refused registration if it contains a total or partial reproduction of elements belonging to cultural heritage that are of national interest (for example, the traditional costume of a region).
- Change of name of a 'Community design' to a 'European Union design'.
- Registration symbol: a rightsholder may include the letter D in a circle on their registered design right. Such design notices may be accompanied by the registration number of the design or hyperlinked to the entry of the design in the Design Register.
- Simplification of the schedule of registration fees to increase transparency and changes to the application and renewal fees for an EU design right while ensuring that national only protection continues to be lower than the fees for an EU wide design right.
Entry into force and transposition
Both texts were published in the EU Official Journal on 18 November 2024 and entered into force on 8 December 2024. The regulation will be applicable from 1 May 2025, with the exception of certain provisions which will not apply until 1 July 2026. All EU member states will have until 9 December 2027 to transpose the directive into their national legislation.