New EU design package adopted: strengthening design protection in the digital age

On 10 October 2024, the Council of the European Union has approved the two legislative acts under the EU design package: the revised directive on the legal protection of designs and the amended regulation on European Union designs.

The two texts adopted update the current design legislation originally created more than twenty years ago, to improve the protection of industrial designs in the era of artificial intelligence, digital designs and 3D printing.

What are the main goals?

• Modernising the regulatory framework with a view to simplifying the system and making it more accessible and efficient
•  Adapting EU design protection to new technologies such as metaverse and 3D printing, also supported by artificial intelligence
• Aligning the EU design protection system with the EU trademark system in order to allow for design holders to prevent design infringing goods from entering the EU territory
• Allowing reproduction of original designs for repair purposes of complex products

What are the main changes?

• Broader definition of "Design" and "Product": Design will include not only the appearance of whole or part of a product but also “the movement, transition or any other sort of animation of those features”. The new definition of "product" encompasses any industrial or handicraft product, whether in physical or non-physical form (e.g., virtual designs in the metaverse), and explicitly includes graphical user interfaces and interior or exterior environments (e.g., store designs). 
• Extension of the scope of protection of design rights, including against "3D printing", by clarifying that it is also an infringement of design rights to download, copy and share or distribute to others any medium or software that records the design for the purpose of making a product protected by the design.
• Introduction of new "repair clause" (for spare parts): design protection shall not be conferred to component parts of a complex product (such as cars) upon whose appearance the design of the component part is dependent, and which is used for the sole purpose of the repair of that complex product so as to restore its original appearance
• No visibility requirement: visibility is required in the application for registration, however 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 (with the exception of component parts of a complex product). For the purpose of the registration, the application shall include a "sufficient clear representation" of the design to be registered including through the use of 3D representations and videos., Multiple design applications are also allowed for different products (e.g. a single filing is possible for the protection of both the product and its packaging)
• Design protection against counterfeit goods in transit in the EU: the holder of a registered EU design shall be entitled to prevent all third parties from bringing products from third countries into the EU even if they are not intended to be placed on the EU market
• Administrative invalidity proceedings before national IP offices: under the design directive Member States may provide for an administrative procedure before their offices for the declaration of invalidity of a registered design right, similar to the procedure already established for national trade marks.
• Cultural heritage: under the design directive Member States may also provide that a design is to be refused registration where it contains a total or partial reproduction of elements belonging to cultural heritage that are of national interest (e.g. the traditional costume of a region).

What are the next steps?

Following the Council's approval, the legislative act has been adopted. The next steps are the following:

• The Directive will be published in the Official Journal of the European Union and will enter into force on the 20th day following its publication. Member States will have a period of 36 months to take the necessary measures to transpose the directive into national laws;
• The Regulation will be published in the Official Journal of the European Union and will enter into force on the 20^th day following its publication. It will become effective 4 months later.