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European Design Protection System

Summary
Evaluation
Commission Proposal
Legal Act
Implementation

Overall state of play:

Evaluation: finalised SWD(2020) 264, 6/11/2020.
Commission proposals: Commission package proposals adopted on 28/11/2022: COM(2022)666 and COM(2022)667.
Commission announced in November 2020 IP Action Plan (COM(2020) 760) that it will revise the EU legislation on design protection.

State of play, main conclusions, outlook

The European Design Protection System is based on two pillars. Directive 98/71/EC harmonised the main substantive aspects of national laws on the protection of designs and aimed at maintaining a system for registering designs for businesses that only operate within an EU Member State. Alongside those national protection systems, the Community Design Regulation 6/2002 created an autonomous system for the protection of unitary Community designs having equal effect throughout the European Union.

The results of the evaluation of EU legislation on design protection showed that it works well overall and that it is still broadly fit for purpose. However, the evaluation revealed a number of shortcomings that need 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.

The Commission announced in its IP Action Plan of 25 November 2020 (COM(2020)760) that it will revise the EU legislation on design protection.

The proposed revision of the Design Directive and of the Community design Regulation aims to make the framework fit for purpose in the digital age and make it more accessible and efficient for individual designers, SMEs and design-intensive industries. Simplification of procedures and reduction of administrative burden (including fees to be paid) are indeed among the main objectives of the reform. Streamlining procedures and increasing interoperability of protection systems in the EU through further harmonisation will lead to reducing costs and administrative burdens, both for the design protection users and public administrations. In addition, the proposed opening up of the repair spare parts market will bring substantial benefits to consumers in terms of greater choice and lower prices.

State of Play

Finalised: SWD(2020) 264, 6/11/2020

Scope

Evaluation of Directive 98/71/EC on the legal protection of designs and of Regulation 6/2002 on Community Designs

Evaluation Findings:

The results of the evaluation of EU legislation on design protection show that it works well overall and that it is still broadly fit for purpose. However, the evaluation revealed a number of shortcomings that need 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 include in particular a lack of clarity and robustness of certain key elements of design protection (subject matter, scope of rights and limitations), 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. For instance, the outdated and divergent requirements for the representation of a design in the application for registration (3D digital representation and video filing options are not available) or the complex regime for the filing of multiple design applications make it difficult for applicants to seek protection in an efficient and effective manner, all the more so in the context of multijurisdictional filings.

The evaluation, launched in 2014, included a comprehensive legal and economic assessment, supported by a series of studies: the Economic review of industrial design in Europe (2015), the Legal review on design protection in Europe (2016) and the Intellectual property implications of the development of industrial 3D printing (2020).

State of Play

Package proposals adopted on 28/11/2022:
• Commission Proposal for a Regulation amending Council Regulation (EC) No 6/2002 – COM(2022)666
• Commission Proposal for a Directive on the legal protection of designs (recast) – COM(2022)667

Which objective(s) does the Commission pursue?

The general aim of the reform initiative on the legislation on industrial designs is to promote contribution to design excellence, innovation and competitiveness in the EU by ensuring that the design protection system is fit for purpose in the digital age and becomes more accessible and efficient for individual designers, SMEs and design intensive industries. Furthermore, it aims at completing the single market for repair spare parts.

Specifically, the revision aims at:

• improving the accessibility, efficiency and affordability of registered Community design protection;

• enhancing complementarity and interoperability between the Community and national design systems, in particular through harmonisation of procedural rules;

• opening up the spare parts aftermarket for competition.

Estimated savings and benefits

The amendments will lead to estimated cost savings for customers due to the proposed liberalisation of the spare parts markets, which fully realises after a 10-year transition period. The impact assessment report suggests around EUR 340-544 million of cost savings to customers per year after the 10-year-transition period. During the 10-year transition each year benefits will increase by EUR 4 to 13 million per year to reach EUR 40 to 130 million in the last year.

The proposed change of RCD fees will lead to estimated EUR 1.6 million of cost-savings in 2024, consisting of savings to those protecting designs for 5 to 10 years of EUR 6.2 million (mainly natural persons and firms without legal entity). Moreover, estimations of cost-savings for RCD applicants due to the proposed facilitation of multiple applications are around EUR 0.64 million in 2024, realised at initial application and concerning around 20% of RCD applicants. The proposed abolition of the transfer fee will lead to estimated EUR 0.63 million of cost-savings. It concerns a simplification for around 3000 designs that annually are transferred to a different owner.

Other simplifications (e.g. means and requirements of design representation) are estimated at 1 million EUR for 2024, realised at initial RCD application and concerning around 14% of RCD applicants.

At Member State level, the introduction of office-based invalidity procedures in national IP offices is estimated to lead to EUR 4 000 – 7 000 of cost-savings per case for those seeking to cancel an invalid design registration. The proposed abolition of an ex-officio examination of prior art in national IP offices will reduce registration time for designs by half and concerns around 1000 national design applications a year.