EU Design Legislative Reform Package published

On 18 November 2024 the new EU Design Legislative Reform Package comprising the Regulation and Directive was finally published. This package that was in the works for almost a decade aims to modernize and broaden the current legislative framework. In this article we will provide a short overview of the most important changes for the daily practice.

1.         A new name and symbol

Gone are the Community Designs, under the new Regulation they will be known as EU Designs (EUD) in line with Community Trademarks that have also been renamed to EU Trade Marks (EUTM). There will also be a new symbol, an encircled letter D, to indicate that an EUD was indeed registered.

2.         A new scope of protection

Under the old regulation a design was defined as the appearance of the whole or a part of a product resulting from the features, in particular the lines, contours, colours, shape, texture and/or materials, of the product itself and/or of its decoration. This definition has now been extended to explicitly include the movement, transition or any other sort of animation of those features as well. As such the new EU Designs Regulation (EUDR) offers a broader scope of protection.

The EUDR will also apply to products if they are not embodied in a physical object or materialize in a non-physical form. As such design protection also becomes possible for spatial arrangements, graphical user interfaces, products that exist in the metaverse and NFTs amongst others. This is most likely going to be a very welcome and important modernization.

It should however be noted that computer programs are excluded from design protection and therefore protection should be sought via copyright or patents.

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3.         New ways to represent a design

Thus far designs could be represented by a maximum of seven views which could be very complicated for certain types of designs.

Under the new legislative framework it will be possible to not only submit static drawings or photographs but also dynamic or animated ones, but to also represent the design by means of videos, computer imaging and modelling.

While this adds a lot more flexibility, it must be said that at the time of this writing no updated Implementing Regulation has been adopted yet. Consequently it remains unclear which requirements these additional ways of representation must comply with. If they would turn out to be too narrow, they risk to nullify this added flexibility in great part.

4.         A new fee structure

In relation to registered EUDs there will no longer be an application and publication fee, but rather a single application fee that will have to be paid, which makes things easier.

Also, fees for renewal will go up quite a bit which each new renewal. The idea is encourage designs to become part of the public domain more quickly if they are no longer of interest for their respective holders.

5.         New possibilities for multiple applications

The requirement of unity of class when filing multiple designs has been abolished. It will therefore be possible to apply for multiple designs that are classified in different Locarno classes, rather than being limited to designs that belong to the same class. This will avoid the need to make separate filings, which not only simplifies the process, but will also allow to bring the cost down, as fees for multiple designs are lower as of the second design.

6.         New rights to combat goods in transit and infringement through 3D printing

Both the new Directive and Regulation foresee that rights holders will have the right to prevent the transit of infringing goods through the EU, even if these goods are not intended to be sold in the Union.

The legislator has also given rights holder the right to prohibit the creating, downloading, copying and sharing or distributing to others any medium or software which records the design for the purpose of enabling an infringing product to be made. This new provision has been made with 3D printing technologies in mind and aims to enable rights holders to act against files that allow an infringing product to be printed. Under the old legislative framework it was not possible to act against these mediums or software, because they themselves do not exploit the appearance of the product in question.

It however remains to be seen to what extent this new provision is bulletproof as it is uncertain if this wording also extends to the process of converting the 3D model into commands for the 3D printer. Moreover this wording does not seem to cover media or software used for the mere purpose of displaying the 3D model on a device.

7.         A new repair clause

Finally, the new Directive and Regulation include a new so-called repair clause which should ensure a more uniform legislative framework throughout the EU. This will force EU member states to adopt this clause in their legislation, while this is currently not the case for quite a few members. The repair clause has also become permanent in the Regulation and is no longer a transitional clause.

Under this clause “must match” parts are excluded from design protection. Rights holders will thus not be able to enforce their rights against parts for the repair of the original appearance of the product in question. With this exemption the legislator wants to boost competition in the market for spare parts.

The EUDR will be applicable as of 1 May 2025, with the exception of those provisions that require further implementation such as the new ways to represent a design. Those provisions shall apply only as of 1 July 2026, so by that time we should have updated Implementing Regulations. EU member states need to transpose the new Directive into their national legislation by 9 December 2027.

With this we conclude our succinct overview of the what we believe are the most important changes for daily practice. Stay tuned however for further follow-up articles in which we will cover certain topics in more detail. In the meantime De Clercq & Partners is available for any questions you may have concerning the new EU Design Legislative Reform Package feel free to contact us at info@dcp-ip.com.