We conclude 2024 with a significant advancement in the design regulation in the European Union. On November 18, 2024, the following legal texts were published in the Official Journal of the EU:
- Regulation (EU) 2024/2822 of the European Parliament and of the Council of October 23, 2024, amending Council Regulation (EC) No. 6/2002 on Community designs and repealing Commission Regulation (EC) No. 2246/2002 (‘the Amending Regulation’). This new regulation will come into force in two phases: on May 1, 2025, and mid-2026.
- Directive (EU) 2024/2823 of October 23, 2024 (‘the Recast Directive’), which must be transposed into national design regulations by December 9, 2027.
These new regulations introduce a series of changes aimed at adapting to technological advances, improving accessibility, and strengthening the rights of designers and companies. The first evident change is the renaming of this right, changing from “Community design” to “European Union design.”
In this regard, from a conceptual point of view, the definitions of design and product are updated and expanded:
- The definition of “design” has been expanded to include not only the appearance of the whole or part of a product but also digital and graphic elements, such as user interfaces, icons, and fonts. This update recognizes the growing importance of digital products and ensures they are properly protected. [Art. 3.1 of the Amending Regulation and 2 of the Recast Directive].
- The definition of “product” now comprises both physical objects and virtual products. This includes designs applied to virtual and augmented reality environments, reflecting technological evolution and the new ways in which designs are used and implemented. [Art. 3.1 of the Amending Regulation and 2.4 of the Recast Directive].
Another significant change is the reduction of application fees to promote and encourage innovation and facilitate access to the design protection system, which will be of great interest to SMEs and individual designers. Continuing with the application, the number of designs in a single multiple application is limited to 50, as is already the case with Spanish designs. Additionally, it will no longer be necessary for them to belong to the same product class according to the Locarno Classification. [Art. 37 of the Amending Regulation and Article 27 of the Recast Directive].
Another significant update is the introduction of the “repair clause.” This allows the manufacture and sale of visible spare parts of complex products (such as vehicles, appliances, etc.) without infringing the design rights of the original manufacturer. This measure is aimed at promoting competition in the spare parts market and benefiting consumers by providing more affordable and accessible options. [Art. 20 bis of the Amending Regulation and 19 of the Recast Directive].
Regarding the scope of the conferred right, it is confirmed that the design features of a product do not need to be visible at any specific time or in any particular situation of use to be eligible for design protection, except for the designs of components of a complex product that must remain visible during the normal use of said product.
Unless authorized by the right holder, they may prevent the creation, download, copy, and making available of any medium or software that records the design, for the purpose of reproducing a product that infringes the protected design (such as 3D printing). [Art. 19.1.d) of the Amending Regulation]. The right holder’s exclusive right may also be enforced on products in transit through the EU.
On the other hand, according to Article 20.1 d) of the Amending Regulation, the holder may not prevent acts carried out to identify a product as theirs or to refer to such a product.
Regulation (EU) 2024/2822 represents a significant advance in the protection of industrial designs, adapting to the needs of a constantly evolving technological market. By modernizing and streamlining procedures, and expanding definitions to include new types of design, the European Union reinforces its commitment to innovation and competitiveness.
It is essential that companies and professionals in the sector are aware of these changes to take full advantage of the new opportunities and ensure their designs are properly protected.
Author: Pilar Egido- Attorney at Law
Ballester IP
Alicante, Spain
