New EU Rules Keep Up with Digital Era

Key Changes 

• The term ‘design’ now includes ‘the movement, transition or any other sort of animation’. 
• The term ‘product’ now includes embodiments in digital forms, for example, graphic works, logos, surface patterns, and graphical user interfaces. It also newly includes interior design layouts for stores. 
• A "repair clause" to liberalise the spare parts market for consumer benefit and to encourage sustainable practices. 
• Cultural heritage prevented from being registered as design sets 

What Constitutes a Design? 

The scope of design protection hinges on the interpretation of "design" and "product". In this context, a "product" encompasses both industrial and handicraft items, while a "design" pertains to the visual attributes of a product derived from specific features. While these definitions are straightforward when applied to physical products, the previous EU design legislation, last updated in 2006, hasn't adapted to the rapid rise of digital designs. 

“The issue of digital designs raises the question whether they can be understood as products and also whether their elements are covered by the design notion (e.g. is animation a feature?).” 
- Section 5.2.2 

The previous legislation lacked adequate guidance on protecting digital designs such as animated icons and graphical user interfaces (GUIs). To address this gap, the Commission suggests amending the legislation to explicitly include digital designs and provide better means for their representation within the application process, including digital animation files. 

Right to Repair 

The 'repair clause' addresses the exclusion of replacement parts for complex products from design protection. These replacement parts, used solely for repair purposes and mirroring the appearance of the original piece, such as a damaged car door or broken phone battery, are exempted from design protection. This clause aims to promote competition in the spare parts market and ensure wider availability of affordable spare parts for consumers throughout the EU. It is estimated that this measure could result in savings ranging from €340 to €544 million for consumers over a span of 10 years, while also contributing to sustainability through circular economy. 

New Fee Structure 

To harmonise national and EU design protection systems, the provisional agreement entails raising EU-wide fees to align with the broader territorial coverage of EU-wide design protection, thus making them higher in comparison to solely national protection schemes. Additionally, law offices will be obliged to notify designers as their design rights approach their expiry date. 

Furthermore, individual designers and Small and Medium-Sized Enterprises (SMEs) will newly benefit from bulk discounts when filing multiple designs, regardless of the category. Previously, the discount applied only to designs of the same category (Locarno classification), which benefited large companies, who are more likely to have a range of similar products filed simultaneously.  

Next Steps 

Valid as of 5 December 2024, member states will be granted a 36-month period to enact the required measures for transposing the directive on the legal protection of designs. Upon its entry into force, the regulation governing EU designs will become applicable across all member states of the EU. 

However, while promising to “keep up with the times”, the law could have been more forward-looking and anticipating what is to come. For example, it is still unclear whether AI-generated designs can be protected and who would detain the rights, which will be a major challenge to EU designers and lawmakers in the years to come.