What changed between the plenary report and the adopted text

Removed:Recital 5: (5) In its conclusions of 11 November 2020 on intellectual property policy and the revision of the industrial design system in the Union25, the Council called on the Commission to present proposals for the revision of Regulation (EC) No 6/2002 and Directive 98/71/EC. The revision was requested due to the need to modernise the industrial design systems, to update them in line with market developments regarding information technology and artificial intelligence and to make design protection more attractive for individual designers and businesses, especially small and medium-sized enterprises. In particular, that revision was requested to address and consider amendments aiming at supporting and strengthening the complementary relationship between the Union, national and regional design protection systems, and involve further efforts to reduce areas of divergence within the design protection system in the Union.

Added:(As an agreement was reached between Parliament and Council, Parliament's position corresponds to the final legislative act, Directive (EU) 2024/2823.)

Removed:Recital 6: (6) Based on the final results of the evaluation, the Commission announced in its communication of 25 November 2020 entitled ‘Making the most of the EU’s innovative potential. An intellectual property action plan to support the EU’s recovery and resilience’27 that it would revise Union legislation on design protection, following the successful reform of Union trade mark legislation, with a view to simplifying the system and making it more accessible and efficient, and with a view to updating the regulatory framework in the light of the developments in relation to new technologies on the market.

Removed:Recital 7: (7) In its resolution of 11 November 2021 on an intellectual property action plan to support the EU’s recovery and resilience28 the European Parliament welcomed the Commission’s willingness to modernise the Union legislation on design protection in order to better support the transition to a sustainable and digital economy, called on the Commission to further harmonise the application and invalidation procedures in the Member States, and suggested to reflect upon aligning Directive 98/71/EC and Regulation (EC) No 6/2002 with a view to creating greater legal certainty. / 28 European Parliament resolution of 11 November 2021 on an intellectual property action plan to support the EU’s recovery and resilience (2021/2007(INI)) (OJ C 205, 20.5.2022, p. 26).

Removed:These are the terms used in paragraph 32 of the European Parliament resolution of 11 November 2021 on an intellectual property action plan to support the EU’s recovery and resilience.

Removed:Recital 8: (8) Consultation and evaluation have revealed that, in spite of the previous harmonisation of national laws, there are still areas where further harmonisation could have a positive impact on competitiveness and growth and, in particular, in terms of the increased accessibility SMEs would have to the design protection system.

Removed:Recital 13: (13) The attainment of the objectives of the internal market requires that the conditions for obtaining a registered design right be harmonised in all the Member States.

Removed:Recital 18: (18) While design features need to be visible to benefit from design protection, it is not necessary for those features to be visible at all times or in a particular situation in order to qualify for such protection; as an exception to this principle, protection should not be extended to those component parts which are not visible during normal use of a complex product, or to those features of such part which are not visible when the part is mounted, or which would not, in themselves, fulfil the requirements as to novelty and individual character. Therefore, those features of design of component parts of a complex product 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:Linguistic clarification.

Removed:Recital 19: (19) Although product indications do not affect the scope of protection of the design as such, alongside the representation of the design they may serve to determine the nature of the product in which the design is incorporated or to which it is intended to be applied. Furthermore, product indications improve the searchability of designs in the register of designs kept by an industrial property office. Therefore, accurate product indications facilitating search and increasing the transparency and accessibility of a register should be ensured prior to registration without an undue administrative burden or additional costs for applicants.

Removed:Recital 21: (21) 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 the design protection. A registered design right may be declared invalid where no considerations other than the need for that product to fulfil a technical function, in particular those related to the visual aspect, have played a role in the choice of the features of appearance.

Removed:Often, designs are not mere design objects but are industrial products having a function. Design protection presents a major asset also for functional and technical products and should therefore enjoy protection.

Removed:Recital 27: (27) For reasons of legal certainty, the substantive grounds for non-registrability and the substantive grounds for the invalidation of registered design rights in all the Member States should be exhaustively enumerated.

Removed:This reference to legal certainty underlines the importance of exhaustively listing the substantive reasons for such non-registrability and invalidation.

Removed:Recital 28: (28) In view of the growing deployment of artificial intelligence and 3D printing technologies in diverse industries, and the resulting challenges for design right holders to effectively prevent the illegitimate, easy copying of their protected designs, 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 reproduction of a product that infringes the protected design, amounts to use of the design being subject to the right holder’s authorisation.

Removed:Recital 29: (29) In order to strengthen design protection and combat counterfeiting more effectively, as called for by the European Parliament in its resolution of 11 November 2021, and in line with international obligations of the Member States under the World Trade Organisation (WTO) framework, in particular Article V to the General Agreement on Tariffs and Trade on freedom of transit, and, as regards generic medicines, the Declaration on the TRIPS Agreement and Public Health, the holder of a registered design right should be entitled to prevent third parties from bringing products from third countries into the Member State where the design is registered without being released for free circulation there, where without authorisation the design is identically incorporated in or applied to these products, or the design cannot be distinguished in its essential aspects of the appearance from such products.

Removed:It is worth noting that this concern to combat counterfeiting more effectively has been expressed by the European Parliament previously.

Removed:Recital 34: (34) The differences in the laws of the Member States on the use of protected designs for the purpose of permitting the repair of a complex product so as to restore its original appearance, in particular where the product incorporating the design or to which the design is applied constitutes a form-dependent component part of a complex product, directly affect the establishment and functioning of the internal market. Such differences distort competition and trade within the internal market and create legal uncertainty, as highlighted by the European Parliament in paragraph 33 of its resolution of 11 November 2021. The repairability of products is at the core of a sustainable economy, as highlighted in the European Green Deal and in the amendments of the European Parliament of 12 July 2023 to the proposal for a regulation of the European Parliament and of the Council establishing a framework for setting eco-design requirements for sustainable products and repealing Directive 2009/125/EC1a. / 1a Texts adopted, P9_TA(2023)0272.

Removed:Recital 35: (35) It is therefore necessary for the smooth functioning of the internal market and in order to ensure fair competition therein to approximate the design protection laws of the Member States as concerns the use of protected designs for the purpose of repair of a complex product so as to restore its original appearance through the insertion of a repair clause similar to that already contained in Regulation (EC) No 6/2002 and applicable to EU designs at Union level but explicitly applying to component parts of complex products only. As the intended effect of such repair clause is to make 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 design right infringement under this Directive. 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 repair, it should also be made explicit in the law that the repair clause cannot be invoked by the manufacturer or seller of a component part who have failed to duly inform consumers with detailed information about the origin and identity of the producer of the product to be used for the purpose of the repair of the complex product.

Removed:Article 2 – point 5 a (new): (5a) ‘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:Article 19 – 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 such a component part for the aforementioned repair purpose shall be presumed.

Removed:Article 19 – paragraph 2: 2. Paragraph 1 cannot be invoked by the manufacturer or the seller of a component part of a complex product who 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 sole 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. This indication of the manufacturer’s identity shall include at least the name of the manufacturer, the geographical address of his registered place of business and, where appropriate, his telephone number or e-mail address.

Removed:Article 19 – paragraph 3: 3. Where at the time of adoption of this Directive the national law of a Member State provides protection for designs within the meaning of paragraph 1, the Member State may, by way of derogation from paragraph 1, continue to provide that protection for designs for which registration has been applied before the entry into force of this Directive. That protection shall last 10 years from the date of entry into force of this Directive, unless that Member State prefers to opt for a shorter period of at least three years.

Removed:Article 24: The holder of a registered design right 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:Article 31 – paragraph 1: 1. Without prejudice to the right of the parties to appeal to the courts, Member States may provide for an efficient and expeditious administrative procedure before their offices for the declaration of invalidity of a registered design right.

Removed:A mandatory administrative system for invalidity would lead to an increase in workload and in public expenditure and investments in the National IP Offices, because (1) conflicts in the field of design are less than in the field of trademark, and putting the system into force would be useless and onerous; and (2) if the rightholder pays the renovation timely, the legal life of a trademark could last forever, while, the legal life of a design is restricted to maximum 25 years -yet designs are often protected from 5 to 10 years-.

Removed:The Rapporteur takes a generally favourable view of the Commission’s proposal, which repeals and replaces the existing Directive 98/71/EC. It has the merit of adapting design protection to the evolution of digital technologies, in particular the appearance of 3D printers. It also seeks to further align national laws in order to enhance their interoperability and complementarity with the Community design system. Finally, it aims to complete the single market in repair spare parts by introducing a repair clause into the Directive as already contained in the Regulation.

Removed:The proposed changes are guided by two general objectives: enhancing legal certainty and reiterating positions previously expressed by the European Parliament. The most important concern the replacement of the concept of ‘origin’ of the product, which is too vague, with the concept of ‘identity of the manufacturer’ of the product (Nos 8 and 14), and the relaxation of the ten-year period for the application of the repair clause to designs for which registration was sought before the entry into force of the new Directive, which was considered excessively rigid (No 15).