What changed between the plenary report and the adopted text

Removed:Recital 4 a (new): (4a) In its resolution of 11 November 20211 a, the European Parliament pointed out that the current EU design protection system was set up 20 years ago and should be reviewed, highlighting the need for the provisions of the Regulation to be updated in order to ensure greater legal certainty;

Added:(As an agreement was reached between Parliament and Council, Parliament's position corresponds to the final legislative act, Regulation (EU) 2024/2822.)

Removed:Recital 6: (6) While the Commission’s evaluation of the Union’s legislation on design protection confirmed that it is still largely fit for purpose, it announced in its communication ‘Making the most of the EU’s innovative potential – An intellectual property action plan to support the EU’s recovery and resilience’30 of 25 November 2020 that following the successful reform of the EU trade mark legislation, among others, it will revise the Union legislation on design protection with a view to improving the accessibility, efficiency and streamlining, and with a view to updating the regulatory framework in line with the evolution of new technologies on the market.

Removed:Recital 10: (10) In order to ensure legal certainty, it is appropriate to clarify that protection is conferred upon the right holder for those design features of a product, in whole or in part, which are shown visibly in an application for a registered EU design and made available to the public by way of publication or consultation of the relevant file. While design features need to be visible to benefit from design protection, it is not necessary for these characteristics to be visible at all times or in a particular situation in order to benefit from this protection. However, an exception should apply to the design protection of component parts of a complex product that need to remain visible during normal use of that product.

Removed:Linguistic clarification (linked to Article 18a)

Removed:Recital 10 a (new): (10a) Technological innovation should not be hampered by granting design protection to designs consisting exclusively of features or the arrangement of features dictated solely by a technical function. It is understood that this does not entail that a design must have an aesthetic quality and that designs with a technical function are not excluded from design protection. Likewise, the interoperability of products of different makes should not be hindered by extending protection to the design of mechanical fittings. Features of a design which are excluded from protection for these reasons should not be taken into consideration for the purpose of assessing whether other features of the design fulfil the requirements for protection.

Removed:It is important to emphasise that functional and technical products are not excluded from design protection. To align with amended recital 21 of the recast Directive.

Removed:Recital 11: (11) The use of artificial intelligence and 3D printing technologies in different areas of industry is growing, which results in challenges for design right holders to effectively prevent illegitimate copying of their protected designs. In this context, there should be clarity when it comes to the protection of 3D printing files and the limitations to the private use of designs. Therefore, it is appropriate to provide that the creation, downloading, copying and making available of any medium or software recording the design for the purpose of reproducing a product that infringes the design, amounts to use of the design being subject to the right holder’s authorisation.

Removed:Recital 13: (13) To that effect, it should be permissible for holders of registered EU designs to prevent entry of infringing products and their placement in all customs situations. In performing customs controls, the customs authorities should make use of the powers and procedures laid down in Regulation (EU) No 608/2013 of the European Parliament and the Council32, including at the request of the right holders. In particular, the customs authorities should carry out the relevant controls on the basis of risk analysis criteria.

Removed:Recital 16: (16) Directive (EU) [xxx] harmonises the laws of the Member States with regard to the use of protected designs for the purpose of permitting the repair of a complex product so as to restore its original appearance, where the design is applied to or incorporated in a product which constitutes a component part of a complex product upon whose appearance the protected design is dependent. Accordingly, the current transitional repair clause contained in Regulation (EC) No 6/2002 should be converted into a permanent provision. As the intended effect of that provision is to make registered and unregistered Community design rights unenforceable where the design of the component part of a complex product is used for the purpose of the repair of a complex product so as to restore its original appearance, the repair clause should be placed among the available defences to EU design right infringement under Regulation (EC) No 6/2002. Furthermore, for the sake of coherence with the repair clause inserted into Directive (EU) [XXX], and in order to ensure that the scope of design protection is only restricted to prevent design right holders from actually being granted product monopolies, it is necessary to explicitly limit the application of the repair clause set out in Regulation (EC) No 6/2002 to component parts of a complex product. In addition, in order to ensure that consumers are not mislead but are able to make an informed decision between competing products that can be used for the r…

Removed:Recital 18: (18) In view of the insignificant number of EU design applications filed at the central industrial property offices of the Member States and the Benelux Office for Intellectual Property, and in order to align the system for EU design applications to the system set out in Regulation (EU) 2017/1001, it should henceforth only be possible to file an EU design application at the Office. However, Member States should establish a ‘one-stop shop' through which applicants can receive guidance, legal and technical support.

Removed:Recital 18 a (new): (18a) It is desirable that Member States’ central industrial property offices and the Benelux Office for Intellectual Property cooperate with each other and with the EUIPO in all fields of design registration and administration in order to promote convergence of practices and tools, such as the creation and updating of common or connected databases and portals for consultation and search purposes. The Member States should further ensure that their central industrial property offices and the Benelux Office for Intellectual Property cooperate with each other and with the EUIPO in all other areas of their activities which are relevant for the protection of designs in the Union.

Removed:Alignment with directive on the legal protection of designs, recital 43

Removed:Recital 19: (19) Technological advancement, artificial intelligence evolution, and the experience gained in the application of the current EU design registration system has revealed the need to improve and streamline certain aspects of procedure. Consequently, certain measures should be taken to update, simplify and speed up procedures where appropriate and to enhance legal certainty and predictability where required.

Removed:Recital 22: (22) For reasons of efficiency and to streamline proceedings, the means of notifications and communications should primarily be electronic.

Removed:Recital 24: (24) Given the impact and essential importance of the amounts of fees payable to the Office for the functioning of the EU design protection system and its complementary relationship as regards national design systems, and in order to align the legislative approach with Regulation (EU) 2017/1001, it is appropriate to set those fee amounts directly in Regulation (EC) No 6/2002 in the form of an annex. The amounts of the fees should be fixed at a level which ensures both that the revenue they produce is in principle sufficient for the budget of the Office to be balanced and that there is coexistence and complementarity between the EU design and the national design systems, also taking into account the size of the market covered by the EU design and the needs and minimal impact of these fees on SMEs accessing the industrial design protection system in the Union. A sufficient level of flexibility shall be given on the amounts of the fees to take into account the inflation and ensure stable level of resources for the Office.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 6, Article 2 – paragraph 1: The European Union Intellectual Property Office (‘the Office’), established by Regulation (EU) 2017/1001 of the European Parliament and of the Council*, shall carry out the tasks entrusted to it by this Regulation. The Office shall communicate publically often and clearly about these tasks, in order to raise awareness and promote the possibilities of registering an EU design.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 8, Article 3 – paragraph 1 – point 3 a (new): (3a) ‘manufacturer’ means manufacturer as defined in Article 3, point (8), of Regulation (EU) 2023/988 of the European Parliament and of the Council1a. / 1a Regulation (EU) 2023/988 of the European Parliament and of the Council of 10 May 2023 on general product safety, amending Regulation (EU) No 1025/2012 of the European Parliament and of the Council and Directive (EU) 2020/1828 of the European Parliament and the Council, and repealing Directive 2001/95/EC of the European Parliament and of the Council and Council Directive 87/357/EEC (OJ L 135, 23.5.2023, p. 1).

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 10, Article 7 – paragraph 2 a (new): 2a. Paragraph 2 shall also apply if the design has been made available to the public as a consequence of an abuse in relation to the designer or his successor in title or copying of the protected design.

Removed:The scenario where an illegal copy of an (unregistered) design is used as a disclosure against a later registered EU design is not contemplated. This situation significantly harms the rights of users of the design system, and it is unclear whether it constitutes ‘an abuse in relation to the designer’.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 10 a (new), Article 11 – paragraph 2: (10a) Article 11(2) is replaced by the following: / “2. For the purpose of paragraph 1, a design shall be deemed to have been made available to the public within the Union if it has been published, exhibited, used in trade or otherwise disclosed in such a way that, in the normal course of business, these events could reasonably have become known to the circles specialised in the sector concerned, operating within the Union. A design shall not, however, be deemed to have been made available to the public if it has been only disclosed to a third person under explicit or implicit conditions of confidentiality.”

Removed:Linguistic clarification.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 16, Article 20a – paragraph 1: 1. Protection shall not be conferred on a registered design which constitutes a component part of a complex product which is used within the meaning of Article 16(1) for the sole purpose of the repair of that complex product so as to restore its original appearance. The use of that component part of a complex product for the purpose of enabling that complex product to be repaired will be presumed.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 16, Article 20 a – paragraph 1 a (new): 1a. Paragraph 1 shall not apply to rims, covers and similar parts of a complex product the shape of which is not determined by the appearance of the complex product.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 16, Article 20a – paragraph 2: 2. Paragraph 1 cannot be invoked by the manufacturer or the seller of a component part of a complex product who have failed to duly inform consumers, through a clear and visible indication on the product or in another appropriate form, about the identity of the manufacturer of the product to be used for the exclusive purpose of the repair of the complex product, so that they can make an informed choice between competing products that can be used for the repair. That indication of the manufacturer’s identity shall include at least the name of the manufacturer, the geographical address of its registered place of business and, where applicable, its telephone number or email address.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 21, Article 26(a) – paragraph 1: The holder of a registered EU design may inform the public that the design is registered by displaying on the product in which the design is incorporated or to which it is applied the letter R enclosed within a circle. Such design notice may be accompanied by the registration number of the design or hyperlinked to the entry of the design in the Register.’; Any misuse of this indication may lead to legal proceedings.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 25, Article 35 - paragraph 1a (new): 1a. Member States shall establish a ‘one-stop shop' through which applicants can receive guidance, legal and technical support.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 31, Article 42 – paragraph 2: 2. The Executive Director may determine that the documentation to be provided by the applicant in support of the priority claim may consist of less than the documentation required under the implementing acts adopted pursuant to Article 42a, subject to compliance with the principle of equal treatment between applicants and provided that the information required is available to the Office from other sources.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 40, Article 47(a) – paragraph 2: 2. The applicant may at any time amend the representation of the EU design applied for in immaterial details, which merely remedy a lack of precision, certainty or clarity regarding the design for which EU design registration is sought.

Removed:When a discrepancy between views of the design occurs, the current regulation allows the applicant to opt option between deleting conflicting views or splitting the application into two or more applications as necessary. The amendment seeks to solve such errors in a more efficient way.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 49, Article 50e – paragraph 1: 1. The representation of the registered EU design shall not be altered in the Register during the period of registration or on renewal thereof except in immaterial details, which merely remedy a lack of precision, certainty or clarity regarding the design for which EU design registration is sought.

Removed:When a discrepancy between views of the design occurs, the current regulation allows the applicant to opt option between deleting conflicting views or splitting the application into two or more applications as necessary. The amendment seeks to solve such errors in a more efficient way. In alignment with the amendment to Article 47a, paragraph 2.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 59, Article 55a – subparagraph 1: The Commission is empowered to adopt delegated acts in accordance with Article 109a to supplement this Regulation by specifying the formal content of the notice of appeal and the proceedings for lodging and examining an appeal.

Removed:This is a reference to the terms used in Article 73 of Regulation No 2017/2001.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 65 – point b, Article 65 - paragraph 5: 5. The Executive Director shall determine the amounts of expenses to be paid, including advances, to cover the costs of taking of evidence as referred to in this Article.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 67, Article 66 – paragraph 2: 2. Notification shall be mainly effected by electronic means. The details regarding electronic means shall be determined by the Executive Director. The Office shall designate an official address for official communication with the Office.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 84, Article 72(a) – paragraph 3: 3. The Executive Director shall determine the conditions of access to the database and the manner in which the contents, other than the personal data referred to in paragraph 2 of this Article but including the data listed in Article 72, may be made available in machine-readable form, including the charges for such access if it is not free of charge. Any fees to be paid for accessing the database shall in no case exceed the actual cost of the costs directly incurred as a result of such access.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 93 – point a, Article 78 - paragraph 4 - subparagraph 2: Where the entitlement referred to in the first subparagraph, point (c), is not conditional upon the requirement of special professional qualifications, the person applying to be entered on the list who acts in design matters before the Benelux Office for Intellectual Property or a central industrial property office shall have gained professional experience in the field of designs for at least five years. However, persons whose professional qualification to represent natural or legal persons in design matters before the Benelux Office for Intellectual Property or a central industrial property office is officially recognised in accordance with the regulations laid down by the State concerned shall not be required to have exercised the profession.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 100, Article 88 – paragraph 2: 2. On all design matters not covered by this Regulation, an EU design court shall apply the applicable national law.;

Removed:There is no subject matter limitation in the Commission proposal, and it should mirror the EU Trade Mark Regulation’s provision (Article 129 (2)) ‘On all trade mark matters not covered by this Regulation, ....’.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 111, Article 102 – paragraph 1 – point e: (e) any other unit or person appointed by the Executive Director to that effect, provided that each of the persons so appointed has sufficient professional experience to enable him or her to make an effective contribution to the protection of designs.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 116, Article 106a(d) – paragraph 2: 2. The Office shall, however, within the time remaining before the end of the period for payment, give the person making the payment the opportunity to pay the amount lacking or, where this is considered justified, overlook any small amounts lacking, without prejudice to the rights of the person making the payment.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 116, Article 106a(d) – paragraph 4 – subparagraph 1: Where an excessive sum is paid to cover a fee or a charge, the excess shall be refunded.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 116, Article 106a(d) – paragraph 4 – subparagraph 2: deleted

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 116, Article 106a(d) – paragraph 4 – subparagraph 3: deleted

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 127, Article 110b – paragraph 1: 1. By [OP please complete: please insert the date = the first day of the month following 60 months after the date of entry into force of this Regulation], and every five years thereafter, the Commission shall evaluate the implementation of this Regulation.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 12, Annex – point 1: EUR 350.

Removed:Regulation (EC) No 6/2002

Removed:Article 1 – paragraph 1 – point 129, Annex – point 6: (a) for the first period of renewal: EUR 250 per design; / (b) for the second period of renewal: EUR 250 per design; / (c) for the third period of renewal: EUR 700 per design; / (d) for the fourth period of renewal: EUR 1400 per design.

Removed:EXPLANATORY MEMORANDUM

Removed:Council Regulation (EC) No 6/2002 can be credited for establishing a European design protection system. But having been in place for over 20 years, the regulation needed to be modernised, in particular to adapt it to the digital age and also to make it more attractive for independent creators and businesses, in particular SMEs. This is the focus of the Commission proposal.

Removed:The rapporteur broadly agrees with the proposed guidelines, but suggests some 20 amendments which seek primarily to bolster legal certainty. The main aims are to clarify the ‘repair clause’ (recital 16, Article 20a), to remove powers from the Executive Director which are difficult to justify (Articles 42, 65, 72a, 78, 100 and 102), and to increase the amount of the renewal fees (annex).