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European Commission Publish Plans for a Revised European Designs Directive and Regulation

EU Designs Directive 98/71/EC and Council Regulation (EC) No 6/2002 have now been in place, largely un-amended, for 20 years.  For the past few years the European Commission have been conducting a review of design law and practice, which has now led to proposals for a revised Designs Directive and Designs Regulation to update the design legal framework in the EU in the digital age. Highlights include:

  • A broadened definition of Design to include the appearance of whole or part of a product including “the movement, transition or any other sort of animation of those features” [thus increasing the scope for protection of GUI’s as a sequence of images in one design]
  • A broadened definition of Product to include “whether it is embodied in a physical object or materialises in digital form” and which now includes specific reference to graphical user interfaces [again increasing scope for protection of digital designs, e.g. as may exist in the metaverse]
  • Multiple design applications to be possible where designs are in different Locarno classes [removing the ‘unity of class’ requirement in place now]
  • Improved rights for owners of unregistered EU Design Rights to be recognised as the legitimate owner of registered EU designs not applied for in their name
  • The exclusive rights of a registered design owner to use a design to extend to “creating, copying and sharing or distributing to others any medium or software for the purpose of enabling a product” (to be made etc.) [thus extending rights to 3D printing]
  • A new repair clause, exempting from infringement component parts of complex products whose appearance the design of the component part is dependent, where its use is for the sole purpose of repair of the complex product to restore it to its original appearance
  • Clarification that designs do not need to remain visible in normal use to be protectable, but that only features that are visible in a design application are subject to protection
  • A requirement for member states to introduce administrative proceedings for invalidation of national registered designs, and harmonisation of the available grounds for same [a change introduced in EU trade mark law in 2017]
  • The scope of design rights to be extended to cover counterfeit goods in transit through the EU [another change introduced in EU trade mark law in 2017]
  • A new registration symbol for designs, proposed to be a D in circle.

The proposals will now be sent to the European Parliament and Council for review, prior to their adoption. They are largely to be welcomed by design rights owners and practitioners alike in helping to broaden the scope of what can be protected as a design, whilst reducing some of the areas of uncertainty under the current framework.

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