EU proposals for design regime reform signal future divergence with UK

Copyright law expert Florian Traub of Pinsent Masons, the law firm behind Out-Law, said the European Commission’s proposed reforms into the Community Design Regulation and the Design Directive were welcome but brought uncertainty as to the future impact on UK law.

“Practitioners and design holders very much welcome the Commission’s intention to revise the EU legislation on design protection. It is hoped that some of the shortcomings of the current designs system will be ironed out as a result of the reform,” Traub said.

“It will be interesting to see whether the UK government which is, of course, no longer part of the EU legislative process after Brexit, will adopt all or at least some of the eventual changes in UK law,” Traub said.

Currently, EU community registered design protection prevents a third party from using a design which does not give an informed user a different overall impression from a registered design, even if they created it independently. Unregistered design rights prevent copying of any design for a three-year period.

The European Commission’s proposals for reform are focused on modernising, clarifying and strengthening EU design protection rules; making design protection more accessible and affordable across the EU; ensuring EU and national rules governing design protection are more compatible; and further aligning EU rules on design protection for spare parts.

The consultation seeks views on how design protection can be made more attractive to designers. The commission is aiming to address the overlap with copyright and making the design regime more relevant for the digital age. 

Those responding to the consultation are asked for their views on what would raise the usage of design protection, including increasing the clarity of design protection rules, harmonising regulation or adjusting the fees charged to protect designs.

The commission is consulting on whether to extend design protection beyond visual designs, to sound designs such as jingles. It has also asked whether stakeholders think legislation should provide for a more systematic categorisation of design types, by drawing a clearer distinction between graphic design, design related to physical objects, and ‘get-up’ such as interior design.

The consultation also examines areas such as acts of reproduction and whether the margin of discretion for EU member states to determine the conditions for copyright protection should be removed.

The consultation period follows the publication of a roadmap into the proposals between November 2020 and February 2021. The consultation is open until 22 July 2021, and adoption of a revised directive is planned for the second quarter of 2022.