EU design law: Preparing for a digital age
On 8 December 2024, the EU Design Reform package finally entered into force. Volha Parfenchyk explains what the changes mean for design owners in the EU.
Design rights exist to protect the design of a product, especially shapes, colours or materials, from unauthorised use. As design and technology evolve, it is important that the law is kept up to date, including protecting designers’ rights in new digital worlds.
New legislation finally in force
After almost 10 years in the making, the new EU design legislation was published in the EU Official Journal on 18 November 2024 and entered into force on 8 December 2024. It includes the following two legal acts:
- The European Design Regulation (EUDR), the Amending Regulation on Community designs no. 2024/2822. It will be applicable as of 1 May 2025, except for those articles that will be implemented via secondary legislation, which will be applicable from 1 July 2026.
- The European Design Directive (EUDD), the Directive on the legal protection of designs no. 2024/2823. It must be implemented by EU member states in national law within 36 months (i.e., before 9 December 2027).
EU design law: The basics
Design law can be of great interest to companies marketing specially designed products. Under design law, designs enjoy a specific period of protection in the EU:
- Unregistered designs have a protection period of up to three years,
- Registered designs have a maximum protection period of 25 years.
Based on an EU design right, action can be taken against (re)production and sale of products with (nearly) the same appearance.
A design qualifies for protection in the EU if it has individual character and is new. By individual character, the general impression created by the design on the informed user must differ from the general impression created by existing designs. To judge this, the nature of the product and the designer's degree of freedom should be considered. This is because some elements are technically determined and so the designer will not have freedom to achieve creative performance in that respect.
EU design law: What has changed?
The new EU design legislation includes many changes, including those that are intended to match design law with current and future trends. Some points of note include:
- Change of name
The 'Community design' is now known as the 'European Union design' or ‘EU design'.
A new symbol Ⓓ has been added for use by design right holders. This symbol will inform the public of the protection conferred on the design. While the symbol is already in unofficial use, it will become officially used by the EUIPO and may also be accompanied by the registration number or link to the registration.
- New definitions of 'creation' and 'design'
Concepts and definitions of the EU design law have been updated to make them more applicable to current and future circumstances. With this, the EC aims to increase innovation and market activity and respond to current trends.
For example, the new definition of 'product' will allow both physical and digital forms of expression. Furthermore, not only packaging but also movements, transitions or any sort of animation of a product are now included under the term 'design' (Art. 3 Regulation, Art. 2 Directive).
- 3D printing as a form of use
3D printing of a design has been added as a form of use, requiring permission from the holder of the design first to lawfully 3D print the design (Art. 19(2) Regulation, Art. 16(2) Directive).
- Visibility requirement
The EU design package clarifies that elements of designs do not need to be visible to be protected (Recital 13 Regulation, Recital 16 Directive). The exception is made for component parts of complex products; the latter must remain visible during the normal use of the product to enjoy protection.
- Spare parts protection
A so-called 'repair clause' is introduced (Art. 20a Regulation, Art. 19 Directive). According to it design protection shall not be conferred to component parts of products if they are required for keeping or restoring the original appearance of the product (“must match” parts).
- Multiple design applications are possible
It will now be possible to file multiple design applications with respect to designs that belong to different Locarno classes.
Speak to your Novagraaf attorney or contact us below if you have questions about the EU Design Reform package or how to protect and enforce your designs and other IP rights in the digital age.
Volha Parfenchyk works in Novagraaf’s Knowledge Management department. Additional reporting by Noa Rubingh