Legal review on industrial design protection in Europe

The European Commission has published the Legal Review of Industrial Design Protection in Europe, which was conducted by Spark Legal Network, Queen Mary University of London, Time.lex and Indiville.

The report concludes, in respect of several aspects of the design system, that the desired level of harmonization has been achieved, and the functioning of the internal market with regard to goods embodying designs has been facilitated. However, it also identifies those areas of difficulty, which have the potential to negatively influence the accessibility and smooth running of the system.

In general, the report appreciates the need for EU design law to develop organically via judicial interpretation, whether through the EUIPO or the EU courts. In some of these cases, national offices and courts have made considerable effort to align their case-law with EU decisions. Conversely, the report cautions against overestimating the ability of EU institutions to synergise the disparate experiences and practices of 28 Member States.

The study team noted difficulties with regard to the subject matter of protection, which in turn lead to dissatisfaction relating to disparate areas of inquiry, including the definition of design, the concept of functionality, the notion of disclosure, the scope of protection, and the adjacent administrative implementation of legal policies and rules. In these instances, the study team hesitantly champions the ability of the national offices or the EU institutions to change direction, in order to align it across the EU. In light of this, revisions to the Design Directive have been recommended where changes to language, or clarity in approaches are required.

A secondary set of conclusions, which this enquiry elicited concern the future of design law in light of new technologies and market environments, specifically in two areas: spare parts and 3D printing. Regarding spare parts, the stand-still clauses in the Design Directive, and the “must match” clause in the Design Regulation had led to a split in the approaches of the various Member States under scrutiny. The multi-faceted approach that is clearly seen among the Member States calls for some institutional intervention, and recommendations have been made as to how this might be achieved. Conversely, in relation to 3D printing, the conclusion from surveys, interviews and desk research is that this is a fresh area of technology, and as such, conclusions should not be drawn without further empirical, academic and judicial substantiation.

For questions about the study – or more generally about EU design law – please get in touch