A brief overview of the European design reform

On 8 December 2024 the European acts reforming EU design law entered into force. Namely: i) Regulation EU 2024/2822 (amending Council Regulation (EC) No 6/2002 on Community designs and repealing Commission Regulation (EC) No 2246/2002) and ii) Directive (EU) 2024/2823 on the legal protection of designs.

Regardless of their entry into force, the provisions of the new EU Design Regulation will apply progressively from 1 May 2025 and in the subsequent 14 months, while the EU Member State shall implement the new Directive by 9 December 2027.

Why does it matter?

It represents the very first significant modernisation of the EU design protection framework, bringing it into line with current technological developments and consolidating the era of digital designs.

Broadly speaking, the main purposes of such reform are to:

• update the current system in order to ensure greater legal certainty (recital 5, Regulation);
• simplify the system and make it more accessible and efficient (directive, recital 6);
• update the regulatory framework in light of developments in relation to new technology (directive, recital 6);
• strengthen the harmonisation of national design laws and practices, creating, as far as possible, equal conditions for the registration of designs throughout the Union (regulation, recital 8);
• align the design protection system with the trademark system (directive, recital 7).

What’s new?

Here are some of the main changes of this reform:

• Naming

New designs registered at EU Level will no longer be called “Community Designs” but “European Union Designs”.

• New definitions of “designs” and “products” (art. 3 Regulation, Art. 2 Directive”)

The definition of “design” has been extended and now encompasses notions intimately linked to technological developments, and includes movement, transition or any kind of animation of such features (e.g. graphic works, logos, surface patterns and graphical user interfaces). It validates a progressive vision of design, adapting to digital design developments in order to cover them by the protection offered by the new regulatory framework.

The definition of product now includes any industrial or handicraft item, whether embodied in a physical object or in a non-physical form. The most distinctive aspect, beyond the extension of the list of examples included and covered, is the clarity of the inclusion of non-physical products. The purpose is to accommodate non-tangible products, such as digital ones. This means that virtual interfaces or technological effects can now be covered by the protection of the new legal framework.

In addition, pursuant to recital 13 of the new EU Regulation, it has been clarified that “apart from being shown visibly in an application for registration of an EU design, design features of a product do not need to be visible at any particular time or in any particular situation of use in order to benefit from design protection. An exception to that principle applies to the design protection of component parts of a complex product that need to remain visible during normal use of that product”.

Therefore, the protection can be enforced also with respect to “non-visible” aspects of the products, to the extent that they are clearly mentioned and visible in the application for the registration.

• D Marking

A new symbol has been created to strengthen design protection. It shows that the design is protected by registration (Regulation, article 26a).

• Enforceability against 3D printing technologies

A specific new exclusive right to the design holder has been set out (Regulation, article 19.2.d. and Directive 16.2.d).

Specifically, designs holders will be able to act against copies made using 3D printing technologies, namely “creating, downloading, copying and sharing or distributing to others any medium or software which records the design” may be prohibited.

• Repair clause

Article 20a of the new EU Regulation and article 19 of the new Directive, update and address the issue of the so-called “repair clause”, which was already provided for in EC Reg. 6/2002 (previous article 110, now deleted) but not in EC Directive 98/71 and thus led to lack of harmonization at the EU level (by way of example, the Italian IP Code already includes in article 241 a “repair clause” exception).

From now on, pursuant to article 20a of the new Regulation and article 19 of the new Directive, design protection will not be conferred on a registered design which constitutes a component part of a “complex product” (i.e., pursuant to article 3.3. of the new Regulation, “a product that is composed of multiple components which can be replaced, permitting disassembly and reassembly of the product”) upon whose appearance the design of the component part is dependent, for the sole purpose of the repair of that complex product so as to restore its original appearance. This is the essence of the repair clause.

Such new “repair clause” shall apply to “must match” parts only, i.e. to parts that are used to restore the original appearance of the product and, according to article 19 (4) of the new Directive, “where on 8 December 2024, the national law of a Member State provides protection [….] the Member State shall, […] continue until 9 December 2032 to provide that protection for designs for which registration has been applied for before 8 December 2024”.

• Administrative design invalidity proceedings for national design

According to article 31 (1) of the new Directive: “Member States may provide for an efficient and expeditious administrative procedure before their offices for the declaration of invalidity of a registered design right”.

Therefore, Member States are only encouraged to provide for such (hopefully) speedy administrative proceedings and this Commission approach is different from that applied to trademarks, where provision for such administrative proceedings was mandatory for Member States.

• Relevance of public availability of the design outside the UE

The new Regulation deletes the second sentence of article 110a (5) of EC Reg. 6/2002, stating “pursuant to Article 11, a design which has not been made public within the territory of the Community shall not enjoy protection as an unregistered Community design”.

According to the new approach, if the design is made public for the first time outside the UE but still reaches business circles operating in UE, such “first disclosure” is considered valid and relevant for the purposes of the new regulation (e.g., assessment of novelty, assessment of individual character, commencement of protection for unregistered design).