A new EU Design Regulation and Directive is currently in the legislative process. The Regulation will modernise the EU design law and is expected to enter into force in early 2025. The adaption of existing national design rights will follow up in the next 3 years as the member states have up to 36 months to adapt their national laws to the new Directive.
Under the proposal, the definitions of a product and a design will be broadened to take into account of the emergence of new designs that are not embodied in physical products. For example, designs of objects that materialise in digital form or designs that include features of movement, transition or other forms of animation, will be easier to protect. In consequence, it may be easier to obtain design protection for virtual products, graphical user interfaces, light installations or projections, reflective and changing surfaces, holograms and video sequences.
In view of the extended definitions of design and product, the proposal clarifies that design protection is granted only for those features that are visible in the design.
Further, it is planned to simplify the application by removing the unity of class requirement and allowing to apply for up to 50 different designs for different products (and thus different Locarno classes) to be filed. It will also be possible to upload video files. Last but not least, fees will be reduced and it is planned to introduce a flat-rate bulk discount for multiple applications.
The proposal for the design regulation improves the possibilities for design rightholders to combat reproduction of the design through 3D printing by clarifying that a design may be infringed by the making, downloading, copying, sharing or distribution to others of any medium or software recording the design. It also gives rightholders new rights to prevent the movement of counterfeit products across the EU.
The new rules will make the repair clause (Art. 110 (1) CDR) permanent and will also harmonise it as it has to be introduced into the national laws of all EU member states. The effect of the repair clause is to make design rights unenforceable where the design of a component part of a complex product is applied or incorporated into an object used to repair a complex product in order to restore its original appearance. This is good news for those in the spare parts market but will limit the rights of design owners and original manufacturers. The manufacturer or seller of the component part (used for repair) has a duty to inform consumers about the commercial origin and the identity of the manufacturer of the component part. This is to enable consumers to make an informed choice between competing products that may be used for the repair. The manufacturer or seller also has to ensure that the user of the component part does not use it for purposes other than repair.
The proposal also introduces a design notice: The holder of a registered design will be able to inform the public that the design of a product is registered by affixing the letter D in a circle on the product.
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