Publication of the report on the evaluation of EU legislation on design protection

[20/11/2020] The European Commission published its report on the functioning of the design protection system in the European Union.

Results of this evaluation, that was initiated over two years ago, show that the design protection system in the EU works quite well.

The Commission confirms the importance of the two-tier protection system, namely on a national level and on a European level, as well as that of the two protection tools for registered designs and unregistered designs.

The Commission however identified some issues which could be amended or specified :

• It recommends that legal clarifications should be provided on the concepts of product, appearance and visibility.

• It insists on the need to clearly specify that the protection conferred by a design relies on the appearance, regardless of the product indication given by the applicants when filing.

• It suggests to align the status of goods in transit with the trademark law regime and, thus allow, under certain conditions, to withhold goods in transit by customs.

• It insists on the possibility of filing reproductions in the form of electronic files so that designs may be represented in a dynamic manner, and not only in a static manner as is the case today.

• It recommends to harmonise national regulations and European design regulations as to procedural  aspects  (durations of deferment of publication, cancellation of the  ‘unity-of-class’ requirement in case of multiple applications…)

• It advocates for the creation of nullity procedures for designs with National Industrial Property Offices, inspired by the procedures presently in force in the EUIPO.

This study should soon give rise to a "Design Package" for reforming the Regulation and the Directive on designs such as happened for trademarks.

To see the study of the Commission