The EU design legislative reform represents a significant modernisation of the design protection framework, aligning it with current technologies and economic realities. It enhances legal certainty, reduces complexity, and expands the accessibility of design rights, which will greatly benefit creators and businesses across Europe.

Aims of the reform

The reform aims to:

✅Modernise, clarify and strengthen design protection.

✅Improve accessibility of design protection in the EU.

✅Ensure enhanced interoperability of design protection systems in the EU.

✅Harmonise the diverging spare parts protection regime across the EU.

Phases of the reform define when the new law applies

The Amending Regulation enters into force on the twentieth day following its publication in the Official Journal of the European Union, but the amendments it contains will start applying in two phases.

Phase 1

Some amendments will apply as from the first day of the month following 4 months after the date of entry into force of the Amending Regulation.

Phase 2

Other amendments, including those brought about by the secondary legislation (Implementing and Delegated Regulations) will apply as from the first day of the month following 18 months after the date of entry into force of the Amending Regulation.

The Designs Directive will enter into force together with the Amending Regulation. Member States will have 36 months to transpose it into their national laws.

The new EU design legislation package was published and contains:

  • Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 6/2002 on Community designs and repealing Commission Regulation (EC) No 2246/2002 (‘the Amending Regulation’)
  • Directive of the European Parliament and of the Council on the legal protection of designs (recast) (‘the Recast Directive’).

Main areas of change Phase I

Terminology and structural changes

  • Community design becomes European Union design (EU design or EUD)
  • Community design court becomes EU design court
  • The Community Design Regulation becomes The European Union Design Regulation (EUDR)
  • The Fees Regulation is incorporated as Annex 1 of the EUDR
  • The elimination or redistribution of articles across the Regulation to align with the structure of EU Trade Mark Regulation

Substantive changes

  • Definitions
  • Exclusive rights and limitations
  • Filing and examination
  • Entitlement
  • Fees

Terminology and structural changes Phase I

Terminology

  • The terminology of the Amending Regulation is adapted to the wording of the Lisbon Treaty, with all references to the Community being substituted by references to the European Union or, in some instances, the Union.
  • The Community Design Regulation will become the European Union Design Regulation (‘EUDR’).
  • The Registered Community Design and Unregistered Community Design will become the Registered EU Design (REUD) and the Unregistered EU Design (UEUD).
  • Existing Community design applications and Community designs will automatically become European Union design applications and European Union designs (‘EU designs’).
  • The Community Design Court will become the EU Design Court.
  • The change of name of the Office (to ‘European Union Intellectual Property Office’) had already been implemented as a result of the trade mark legal reform. It is now implemented into the Amending Regulation as well.

Structural changes

  • (Article 2 of the Amending Regulation and other structural changes)
    The Fees Regulation is repealed and the rules applicable to the level, structure and payment of fees are now incorporated into the Amending Regulation as Annex I. This implies that any future changes in the amounts will have to follow the ordinary legislative procedure.
    Other structural changes, involving either the elimination or redistribution of articles across the Regulation and the future secondary legislation, were primarily done to align with the structure of EU Trade Mark Regulations.

Substantive changes

Definitions

  • Design Definition
    (Article 3(1) EUDR, as modified by the Amending Regulation)
    The definition of ‘design’ has been broadened to encompass animation. Animation is to be understood as a progressive change of the design feature(s), with or without retaining their identity. Animation is a broad term and includes both movement and transition.
  • Product Definition
    (Article 3(2) EUDR, as modified by the Amending Regulation)    The definition of ‘product’ has been revised to explicitly include non-physical items. It clarifies that a product can be any industrial or handicraft item other than computer programs regardless of whether it is embodied in a physical object or materialises in a non-physical form.
    Additionally, the list illustrating what constitutes a product is re-arranged and broadened. The statutory definition now expressly encompasses sets of articles, spatial arrangements of items intended to form an interior or exterior environment, and parts intended to be assembled into a complex product, as well as graphic works or symbols, logos, surface patterns and graphical user interfaces.

Exclusive rights and limitations

  • 3D printing
    (Article 19(2)(d) EUDR, as modified by the Amending Regulation)
    The scope of the exclusive rights conferred by a design has been adjusted to extend to 3D printing. Now also creating, downloading, copying and sharing or distributing to others any medium or software which records the design represent infringing uses of a design.
  • New limitations
    (Article 20 EUDR, as modified by the Amending Regulation)
    Two new limitations to the exclusive rights are introduced.
    1. Identification and Referencing: acts carried out to identify or refer to a product as that of the design right holder. This aims to enable product interoperability.
    2. Comment, critique or parody: actions for commenting, critiquing or making parody are permitted to safeguard the right to freedom of speech.
  • Repair clause
    (Article 20a EUDR, as introduced by the Amending Regulation)The transitional ‘repair clause’ becomes a permanent provision and clarifies the exception to design protection for spare parts used in the repair of complex products (e.g. cars). This clause clarifies that there is no protection for a design which constitutes a component part of a complex product for the purpose of the repair of that complex product so as to restore its original appearance. This exception applies exclusively to repair purposes and the replacement part must match the appearance of the original piece.
    This clause addresses disruptions in the internal market for repair spare parts, such as bumpers. It counters the previous legal fragmentation in design protection for spare parts, creating a more harmonised approach.
    The new clause has been included in Article 19 Recast Directive, with a transitional period of eight years.
  • Introduction of Design Notice
    (Article 26a EUDR, as introduced by the Amending Regulation)
    As part of the recent amendments introduced by the Amending Regulation, a design notice system has been implemented. This system allows design holders, or third parties with their consent, to display a design notice on their products to raise awareness about the design registration regime. The design notice will consist of a letter ‘D’ enclosed within a circle (D), which can be used to indicate that the product is protected by design registration. This measure is intended to facilitate the marketing of registered designs and enhance the visibility of design protection.

Filing and Examination

The recent reform introduces several significant changes to the filing and examination process to improve efficiency and accessibility for users. Below is a summary of the primary changes:

1. Centralised Filing
(Article 35(1) EUDR, as modified by the Amending Regulation)

EU design applications can no longer be filed through national offices. All applications must now be submitted directly to the EUIPO, streamlining the process and reducing complexity.

2. Filing Date Requirements
(Articles 35(4) and 38 EUDR, as modified by the Amending Regulation)

The payment of the application fee has become a requirement for establishing a filing date. Applicants must ensure that the fees are paid within one month of filing, aligning the process with that of EU trade marks.

3. Specimens

The submission of physical specimens has been abolished.

4. Multiple design applications
(Article 37 EUDR, as modified by the Amending Regulation)

The “unity of class” requirement has been removed which shall allow a wider variety of designs in a single application. At the same time, a limit of 50 designs per application is introduced to keep it manageable. The fee structure is also simplified.

5. Deferred Publication
(Article 50(5) EUDR, as modified by the Amending Regulation)

Deferred publication is no longer subject to the payment of a publication fee. Accordingly, design holders can no longer prevent publication by non-payment but must explicitly surrender the designs that they do not want to be published. The lack of payment of the deferment fee at the moment of filing leads to the rejection of the application.

6. Renewal
(Article 50d EUDR, as introduced by the Amending Regulation)

The calculation of the basic period for renewal for EU designs is aligned with that of EU trade marks. The basic renewal period will now be the six-month period ending on the date of expiry of the registration (and not on the last day of the month on which protection ends).

The updated renewal fee structure encourages the maintenance of only active, market-relevant designs, ensuring the Register remains current. This approach promotes a healthier design ecosystem and simplifies IP management. Additionally, aligning the renewal process with EU trademark regulations offers convenience and potential cost savings for businesses. Importantly, the EUIPO will be using the date of receipt of the user’s request for renewal as the pivot date for calculating the renewal fees. For requests received prior to the applicability date, the old fees apply. For request received after the applicability date, the new fees apply.

Entitlement
(Articles 15 and 16 EUDR, as modified by the Amending Regulation)

The changes regarding ownership provide clarifications on the appropriate authority to handle these matters and clarifies that a request for a change of ownership through entitlement proceedings can be filed by the person who is entitled.

These changes ensure that rightful holders can directly request a change of ownership rather than having first to invalidate the design.

Fees
(Annex I to the Amending Regulation)

The new regulatory scheme envisages the unification of the registration and publication fees into one single application fee and for multiple applications, a flat fee per additional design is introduced.

The amendments will lead to new renewal fees, introduce a new fee for continuation of proceedings and the alteration of a registered EU design.

On the other hand, the new fee structure includes a reduced single fee for each additional design in a multiple application (to some extent) and a reduction in the fees for application for a declaration of invalidity and appeal.

Furthermore, the following fees are eliminated: late payment of the registration or of deferment of publication fees; fees for recording and registering a transfer; cancellation of the registration of a licence or other right; the inspection of files; communication of information in a file; and fees for the issuance of certified and uncertified copies.

Source: European Union Intellectual property Office

Link: Here