The long-awaited Design Package is about to become a reality. The final texts were published in the Official Journal of the European Union on 18 November 2024. Pieter Veeze is Principal Legal Officer at BOIP. In this article, he highlights the key aspects of the design law reform, through which the European Union aims to strengthen, simplify and harmonise existing design protection across the EU.
EU Regulation 2024/2822 and Directive 2024/2823 will enter into force on the 20th day following publication. The relevant texts are:
- Regulation (EU) 2024/2822 of the European Parliament and of the Council of 23 October 2024 amending Council Regulation (EC) No 6/2002 on Community designs and repealing Commission Regulation (EC) No 2246/20021
- Directive (EU) 2024/2823 of the European Parliament and of the Council of 23 October 2024 on the legal protection of designs (recast)2
Implementation of amendments
Following their entry into force, the amendments to the Regulation will apply in two phases. The first phase, applicable from 1 May 2025, will primarily involve terminology updates. For example, the Community design will now be called the European Union design. Most of the substantive amendments will come in the second phase, applicable from 1 July 2026. The Directive gives Member States 36 months from the entry into force (until 9 December 2027 at the latest, see Article 36 of the Directive) to transpose these amendments into their national legislation. In the Benelux’s case: into the BCIP.
Key amendments
While the content of the amendments has been established, it will take some time before users truly notice the effects. Here are some of the key amendments in advance.
- The definitions of ‘product’ and ‘design’ are being expanded. While design protection previously applied to the appearance of a physical product, the new definition allows a product to be protected as a design ‘regardless of whether it is embodied in a physical object or materialises in a non-physical form’ (Article 2(4) of the Directive). This makes it possible to protect digital objects – which exist only in virtual form or even in a virtual world (such as the Metaverse) – as designs.
- As a logical consequence of this expanded definition, the way in which a design can be represented in the register is also being modernised: ‘The reproduction may be static, dynamic or animated and shall be effected by any appropriate means, using generally available technology, including drawings, photographs, videos, computer imaging or computer modelling.’ (Article 26 of the Directive). As it obviously benefits users if all registering authorities (EUIPO, BOIP, national offices) apply the same rules and technical means as much as possible, I believe it’s a positive development that they’re being encouraged to cooperate and establish common standards (Article 26(6) of the Directive).
- Digitalisation also affects the scope of protection of design rights. For instance, the design holder can now also object to ‘creating, downloading, copying and sharing or distributing to others any medium or software which records the design for the purpose of enabling a(n) [infringing] product to be made.’ (Article 16(2) of the Directive). This provision particularly targets software for 3D printing.
- The scope of protection has also been extended with a provision on goods in transit (Article 16(3) of the Directive), as has existed for trade mark law for several years as a result of the Trade Mark Package (Article 10(4) of Directive 2015/2436).
- The last important amendment that I wish to mention is the repair clause (Article 19 of the Directive). After decades of debate, the EU legislature has finally managed to reach consensus on this clause. I believe that not only competition arguments but also the pursuit of a sustainable economy (the European Green Deal, see recital 33 of the Directive) have played a role in this regard. The market for repair parts is being liberalised, which will obviously particularly affect for the automotive industry. As the BCIP already had a repair clause (Article 3.19(3) BCIP), I assume it will not be necessary to make use of the transitional clause provided for in the Directive (Article 19(4)).
In addition to these amendments, terminology is being modernised in many areas, and several points from the Trade Mark Package are now also being implemented for design law. In short, design law will soon be fully equipped to meet the demands of the future!
1 https://eur-lex.europa.eu/eli/reg/2024/2822/oj
2 https://eur-lex.europa.eu/eli/dir/2024/2823/oj
