On 28 November 2022, the European Commission published two package proposals to revise both the Design Directive (Dir. 98/71/EC) and the Community Design Regulation (Council Regulation (EC) No 6/2002) as steps to create a coherent 'Design package' for the implementation of the Intellectual Property Action Plan published in November 2020.

The proposals had been previously announced in the Commission's regulatory fitness and performance (REFIT) work programme for 2022. Main objectives of this REFIT is to (i) make the framework fit for purpose in the digital age and (ii) simplify registering procedures and reduce administrative burden (including fees to be paid).

The Community Design regulation complemented national design systems by establishing unitary protection for designs (e.g. European Community design title with equal effect throughout the entire EU, directly applicable in each Member State) in 2003. 

Main changes envisaged by the commission's proposal are:

• A broadened definition of "Design" - to include the appearance of whole or part of a product including “the movement, transition or any other sort of animation of those features”.
• A broadened definition of "Product" - to include the advent of new designs not being embodied in physical products and objects materializing in digital forms.
• Adjust the scope of design by extending it to "3D printing" - by clarifying that also "creation, downloading, copying and making available of any medium or software recording the design amounts to use of the design".
• A new repair clause (spare parts) - to clarify that there is no protection for a design which constitutes a component part of a complex product for the purpose of the repair of that complex product so as to restore its original appearance.
• Multiple design applications - to remove the "unity of class" requirement in place now and allow to add more designs in a single application.
• Adjust and optimize the level and structure of payable fees - by repealing the Fees Regulation (Council Regulation (EC) No 2246/2002) and integrate them in Community Design Regulation.

The European Economic and Social Committee (EESC) adopted its opinion on 22 March 2023.

In Parliament, the file has been attributed to the Committee on Legal Affairs (JURI) and Gilles Lebreton (ID, France) has been appointed as rapporteur. JURI's report  was submitted to the Plenary in November 2023 and included the following main changes compared to the Commission's proposal:

• adjusting respective registration fees to motivate individual designers and small and medium-sized companies (SMEs) to protect their designs. The headline fee would amount to 350 euro. Adjusted fees for subsequent renewals would start at 250 euro for the first two renewals and reach 700 and 1400 euro for the third and fourth renewal respectively.
• restricting certain powers of the executive director of the European Union Intellectual Property Office (EUIPO) to bolster legal certainty. So, executive director should only be allowed to require less documentation from applicants respecting the principle of equal treatment or determining amounts of certain expenses in a way to cover the necessary costs.

The Council agreed on a general approach to the proposal on 25 September 2023. The Council supported the main objectives of the package (i.e. it keeps the concept of the ‘repair clause’ as proposed by the Commission), but introduced several amendments including:

• an update of the definition of ‘design’ and ‘product’ to make them fit for the digital age and for future technological developments. For instance, ‘digital’ is replaced by ‘non-physical’
• a simplification of the requirements to represent the design, so that even if, at the date of the request, some documents are missing, the design can still be registered on that date, provided that the representation of the design is clear enough
• a clarification of the rules to declare design rights invalid, with the possibility for Member States to provide for an administrative procedure of appeal, so that parties do not need to go to court

The co-legislators reached a provisional agreement on the Design package on 5 December 2023:

• Repair clause - design of components of complex products will not be protected by EU design if they are used for the repair just to restore the original appearance of the product. The agreement lays down a harmonised transitional period for designs already granted protection of 8 years.
• Design protection fees - registered EU design will be protected for five years and this protection can be renewed by five-year periods for maximum total length of 25 years. Negotiators agreed on the headline registration fee to be 350 euro and they also adjusted prices of renewal fees to motivate individual designers and SMEs to protect their designs. 
• EUIPO - powers of the institution managing the protection of EU designs would be better framed, such as allowing the director to require less documentation from applicants.
• Cultural heritage - The agreement forbids that cultural heritage elements of national interest (e.g. the traditional costume of a region) could be protected as private designs. To frame the limits of this disposition, the co-legislators agreed on using the UNESCO definition of ‘cultural heritage’.
• Transposition period - the regulation on EU designs will be applicable throughout the EU once it comes into force.

The compromise text has been approved by the Council Permanent Representative Committee on 20 December 2023. Parliament formally endorsed the new legislation during its March 2024 Plenary. The directive will now have to be formally approved also by the Council. Regulation will enter into force on the twentieth day following that of their publication in the Official Journal and it will start to apply after 4 months.

References:

• EP Legislative Observatory, Industrial property: protection of Community design, 2022/0391 (COD)
• European Commission, Proposal for a Regulation amending Council Regulation (EC) No 6/2002 on Community designs and repealing Commission Regulation (EC) No 2246/2002, COM(2022) 666 final 
• European Economic and Social Committee, EESC opinion: Revision of the Design Directive and Regulation, 22 March 2023
• Council, Council and Parliament strike provisional deal on design protection package, Press release, 5 December 2023.
• European Parliament, Deal on updated rules on EU design, Press release, 5 December 2023.
• Council, Review of the legislation on design protection, COREPER letter, 20 December 2023.
• European Parliament, Committee vote results design package, 24 January 2024. 
• European Parliament, EU design protection rules ready for new technologies and circular economy, 14 March 2024.

Further readings:

• European Parliament , EPRS, Design package, At a glance, 6 March 2024. 
• European Parliament, EPRS, Revision of the EU legislation on design protection, Briefing, January 2024
• European Parliament, EPRS, Revising the Community Design Regulation and 
  the Design Directive (recast), Initial appraisal, May 2023
• European Parliament, EPRS, Revision of Directive 98/71/EC on the legal protection of designs and of Regulation(EC) No 6/2002 on Community designs, Implementation appraisal, May 2022
  

Author: Stefano De Luca, Members' Research Service, legislative-train@europarl.europa.eu