Adoption of the Designs Protection Package: When Designs Reach the Digital Age

European legislation on designs needed improvement to better adapt and fit to the constant changes led by the development of digital, artificial intelligence and 3D printing. Indeed, designs are no longer necessarily embodied in physical products and the legislation needs to encompass all forms of protection, including virtual designs, graphical user interfaces and stores layout, as well as harms to design rights such as 3D printing. 

Directive 98/71/EC of the European Parliament (which harmonised national laws on the protection of designs among European countries) and Council Regulation (EC) No 6/2022 of 12 December 2001 on Community designs (which introduced a uniform protection throughout the EU for Community designs) were no longer sufficient to protect design rights-holders in this constantly evolving landscape. The Council therefore invited the Commission to submit proposals for revising such legislation on 10 November 2020.

On 10 October 2024, the Council of the European Union finally adopted two major legislative acts under the so-called designs protection package: the revised Directive on the legal protection of designs and the amended Regulation on Community designs.

Apart from adapting the wordings used for trade marks in changing the names “Registered/Unregistered Community Designs” to “Registered/Unregistered EU Designs” and “OHMI” to “EUIPO”, the main goal of the designs protection package is to modernise and improve the protection of designs in the EU.

In simplifying and harmonising the registration process, EU design registration will be easier and more affordable as the procedures between the European and national systems is harmonised, the aim being to enhance interoperability and complementarity between the EU designs systems. This will most certainly benefit independent creators and SMEs by fostering innovation and improving growth and competitiveness.

With Article 27 of the new Directive, design holders will be able to combine several designs in one multiple application irrespective of the Locarno classes the designed product falls into.

Moreover, the registration symbol “D” enclosed within a circle could be used by the design holder to inform the public that the design is registered.

The new design protection package now introduces the “repair clause” in both the Regulation and Directive, thus filling the gap and resolving the disparities that the previous set of legislation introduced among member states, with some permitting protection and enforcement of design rights covering spare parts, due to the absence of the “repair clause” in the Directive. According to Article 19 of the new Directive, design protection is denied for component parts of complex products used for the sole purpose of repair (eg, car repair) to restore their original appearance. To benefit from this provision, the manufacturer or the seller of the competing component part should inform the consumers in a clear and visible way about the commercial origin and the identity of the manufacturer of the product intended to be used for the purpose of the repair of the complex product.

The new legal texts also explicitly provide that a design protected as an EU-registered design can also be eligible for protection by copyright should the requirements be met.

Adapting to the digital era means considering all forms of designs. In that regard, Article 2 of the new Directive encompasses as designs “the appearance of the whole or a part of a product resulting from the features, in particular, the lines, contours, colours, shape, texture, materials of the product itself and/or its decoration” but also the “movement, transition or any other sort of animation of those features”.

Furthermore, “product” means any industrial or handicraft item other than computer programs embodied or not in a physical object. Graphic works and graphical user interfaces can therefore be considered products.

Taking those new forms of designs into account enables registering designs that could be represented in any form, including visual form, using any appropriate means – for instance, generally available technology, such as drawings, photographs, videos or computer imaging/modelling.

The rights conferred by design registration include the prohibition of making, offering, putting on the market or using, importing or exporting and stocking a product in which the design is incorporated or to which it is applied. The rights also prohibit “creating, downloading, copying and sharing or distributing to others any medium or software which records the design for the purpose of enabling a product”. This provision specifically addresses the issue of reproducing a design using digital technology, and notably 3D printing.

The President of the European Parliament and the President of the Council are due to sign the Directive, which will then be published in the Official Journal of the European Union. 20 days after publication, the Directive will enter into force and member states will have to transpose it into their national legislation within a period of 36 months.

The Regulation will enter into force 20 days after publication and will apply four months later.

The new design package will definitely improve the protection of designs in the era of digital designs and 3D printing, and will streamline registration processes throughout the European Union. It is therefore one step further in the protection of intellectual property rights against potential infringers.