Designs Committee Comments on Proposed Amendments to EU Industrial Design Law

The European Union has always been at the forefront of promoting innovation and creativity within its member states. With the ever-evolving landscape of industrial design, it is crucial for the EU to ensure that its legal framework remains adaptive and relevant. To this end, several proposed amendments to the directive and regulation governing industrial design rights within the EU have been suggested.

Since 2018, INTA has collaborated with the European Association of Trademark Owners (MARQUES) and the European Communities Trademark Association (ECTA) on this matter and has been an active contributor to the legislative process. During the current Designs Committee term, the three associations further provided comments to the European Commission’s public consultation on the EU’s proposed new design law (January 2023) and submitted concrete wording recommendations on the proposed text of the reform (June 2023).

Most recently, in the final stages of the negotiation process, INTA, ECTA, and MARQUES jointly provided their view on the amendments proposed both by the European Parliament, Committee on Legal Affairs and by individual Members of the Parliament (October 2023).

This article explores some of the key proposed amendments to the directive and regulation that INTA, ECTA, and MARQUES are following and sheds light on their potential impact on industrial designs.

Expanding the Definition of Industrial Design

One of the primary suggested amendments is to expand the definition of industrial design to include a broader range of creations. This expansion would better accommodate the growing diversity of design-related innovations, such as digital interfaces, graphic user interfaces, and design applied to virtual and augmented reality. By incorporating these changes, the EU could create a more inclusive and flexible framework to protect innovative design concepts, for which INTA has been a keen supporter.

D Symbol

The introduction of a “D” symbol for industrial design would be a positive development for several reasons. Much like the trademark (™/®) and copyright (©) symbols, the D symbol would serve to clearly identify design rights. The D symbol would distinguish protected industrial designs, making it easier for designers, manufacturers, and consumers to recognize when a design is registered and protected. It would also promote legal compliance. By prominently displaying the D symbol on products, designers and manufacturers could encourage legal compliance, as it would signal that the design is protected and cannot be copied without permission. It can be said that it would strengthen brand identity. Just as the trademark symbol helps build brand recognition, the D symbol could enhance the recognition of unique design elements, contributing to a company’s distinct visual identity. Finally, it would educate consumers. The D symbol would educate consumers about the value of design rights and promote an appreciation for the creative effort invested in product design.

Repair Clause

INTA has always emphasized the importance of and the need for a permanent harmonization among the EU member states which currently offer differing views on the repair clause. The wording itself for the repair clause has not been up for debate by INTA. However, there are some concerns in relation to the implementation of the amendments as the suggestion deviates from the ruling by the Court of Justice of the European Union in the Acacia case (C-397/16). The joint comments filed in October with the EU Parliament state: “If the repair clause is to be confined to ‘must match’ components only we advocate to keep the wording ‘upon whose appearance the design of the component part is dependent’ in both the proposed repair clause as well as in the recitals, in order to be clear and consistent about the ‘must match’ limitation.”

Apart from this, the joint comments mention that the position taken in relation to the must-match limitation is that it should not have any retroactive effect. Lastly, the joint comments support the need for a transitional period for the national laws, which should remain in the text of the directive.

Unregistered EU Designs First Disclosure in the EEA

INTA has expressed concern that the suggested linguistic changes, replacing the term “Community” with the term “Union,” could possibly create a legal uncertainty. This is emphasized by the suggestion that the second sentence of Article 110a, paragraph 5, be removed. The October 2023 joint comments stated that the unchanged wording of Article 11 in the Regulation can lead to a discussion of whether it is sufficient for an unregistered design to come into effect where the first disclosure was done outside the EU, while still being known to the relevant circles of experts within the EU.

The proposed amendments to the EU industrial design law are a testament to the EU’s commitment to fostering innovation and protecting the rights of designers. By adapting the legal framework to accommodate evolving technologies and design practices, the EU is positioning itself as a hub for creative industries. These amendments, if adopted, have the potential to boost economic growth and encourage further innovation within the EU, providing a solid foundation for the future of industrial design in the region. It is crucial for stakeholders, designers, and legal experts to engage in constructive dialogue to refine and implement these amendments effectively.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest.

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