EU design legislative reform in force!

What happened?

The EU design legislative reform package (the “Design Reform Package”) came into force on 8 December 2024.

The Design Reform Package aims, more than twenty years after the implementation of the initial legislation, to modernise and harmonise the latter by making it more attractive for designers and businesses (especially small and medium-sized enterprises) and suited to the fundamental innovations and technological advances of recent years. The Design Reform

Package consists of the following texts: 

• Directive (EU) 2024/2823 of 23 October 2024 on the legal protection of designs (recast of Directive 98/71/EC);
• Regulation (EU) 2024/2822 of 23 October 2024 on Community designs (from now on referred to as “European Union Design”) amending the previous regulation.

A few points about design protection

The purpose of design protection is to grant exclusive rights over the appearance of the whole or a part of a product. 

Three types of design protection are available: registered and unregistered EU designs, which are valid in the whole European Union, and national (or regional) registered designs (such as Benelux designs).

The national and EU design systems coexist. While national designs are registered with the Member States’ intellectual property offices, EU designs are registered with the EU Intellectual Property Office (“EUIPO”). In Luxembourg, the design, like the trademark, is a Benelux title valid in the three countries making up the Benelux. Registration of such a design is done with the Benelux Office for Intellectual Property (“BOIP”).

To be valid, a registered design must fulfil two conditions: being new, as the design must not have been disclosed (via a website or during a trade fair or exposition) before the filing date (unless legal exceptions apply), and having an individual character, in that the overall impression produced on the informed user by the design must differ from the overall impression produced on the user by existing designs. 

It is to be noted that a design can be protected by the law on authors’ rights (no registration criterion) and by designs (industrial title), provided that respective legal requirements for protection under each regime are complied with. Benelux designs are governed by the Benelux Convention on Intellectual Property.

In Benelux, designs are still underused and undervalued today: in 2023, for example, the BOIP registered only 686 designs compared to 18 448 trademarks¹.

Key takeaways of the Design Reform Package

The Design Reform Package aims to simplify and further harmonise design registration at the EU and national levels so that the EU design system becomes more efficient and attractive. 

Significant changes include the following:

• Broadened definition of “product” and “design”: “product” now refers to any industrial or handicraft item other than a computer program, regardless of whether it is embodied in a physical object or materialises in a non-physical form. Thus, the Design Reform Package also covers virtual products such as the ones found in virtual reality games or in the metaverse. As for the definition of “design”, it expressly includes the movement, transition or any other sort of animation of the features of a product such as the lines, contours, colours, shape, texture and/or materials. The features must not be immobile.
• Creation of a new exclusive right to take 3D printing designs into consideration: the owner of a registered design is now allowed to prohibit the creation, download, copy, sharing or distribution to others of any medium or software which records the design for the purpose of enabling a product to be made.
• Introduction of a harmonised “repair clause”: a harmonised exception to the design protection is introduced for spare parts of complex products (i) whose appearance depends on the design of the spare part and (ii) which are used exclusively to repair the complex product so as to restore its original appearance. This exception will only apply notably if consumers have been duly informed about the commercial origin of the spare part and the identity of the manufacturer of the spare part.
• No monopoly on cultural heritage: the new Directive allows Member States to provide that a design is to be refused registration where it contains a total or partial reproduction of elements belonging to cultural heritage that are of national interest (e.g. the traditional costume of a region).
• Possibility of multiple design application: applicants can now combine several designs in one multiple application even if the products do not belong to the same class in the Locarno Classification. The Locarno Classification is used to classify the products indicated in registered designs at EU level and in design applications.

What’s next?

Directive (EU) 2024/2823 must be implemented by Member States into national law by 9 December 2027. A modification of the Benelux Convention on Intellectual Property is therefore expected in the next few years. 

Regulation (EU) 2024/2822 will apply from 1 May 2025 but some provisions will only apply from 1 July 2026.