2022/0392(COD) | [ParlTrack]

Proposal for a directive
Recital 1

(1) A number of amendments are to be made to Directive 98/71/EC of the European Parliament and of the Council22. In the interests of clarity, legal certainty, streamlining and updating of rules in relation to market developments determined by the development of information technology and artificial intelligence, that Directive should be recast. _________________ 22 Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs (OJ L 289, 28.10.1998, p. 28).

Amendment 17 #

Proposal for a directive
Recital 3

(3) Design protection in national law of the Member States coexists with protection available at Union level through European Union designs (‘EU designs’) which are unitary in character and valid throughout the Union as laid down in Council Regulation (EC) No 6/200223. The coexistence and balance of design protection systems at national and Union level provides an appropriate level of legal certainty and constitutes a cornerstone of the Union’s approach to intellectual property protection. _________________ 23 Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ L 3, 5.1.2002, p. 1).

Amendment 18 #

Proposal for a directive
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.26. _________________ 25 Council conclusions on intellectual property policy and the revision of the industrial designs system in the Union 2020/C 379 I/01 (OJ C 379I, 10.11.2020, p. 1). 26 THIS FOOTNOTE IS MISSING. THANK YOU FOR USING ANOTHER LANGUAGE.

Amendment 19 #

Proposal for a directive
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 w~~ill~~ould revise ~~the Union~~EU legislation on design protection, following the successful reform of ~~the Union trade mark legislation~~EU 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 development of new technologies on the market. _________________ 27 Communication (COM/2020/760 final) from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Making the most of the EU’s innovative potential. An intellectual property action plan to support the EU’s recovery and resilience.

Amendment 20 #

(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.

Amendment 21 #

Proposal for a directive
Recital 13

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

Amendment 22 #

Proposal for a directive
Recital 18

(18) While design features do not need to be visible at any particular time or in any particular situation in order to benefit from design protection, as an exception to this principle, protection should not be extended to those component parts which are not ~~vis~~perceptible during normal use of a complex product, or to those features of such part which are not ~~vis~~perceptible 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.

Amendment 23 #

Proposal for a directive
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 undue administrative burdens onr additional costs for applicants.

Amendment 24 #

Proposal for a directive
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.

Amendment 25 #

Proposal for a directive
Recital 27 a (new)

(27a) Since the establishment of the Community design system, the development of information technology and artificial intelligence has entailed the advent of new designs which are not embodied in physical products. In this respect, there is a need to further harness the potential of new technologies such as artificial intelligence and blockchain so as to improve the efficiency of our intellectual property systems;

Amendment 26 #

Proposal for a directive
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.

Amendment 27 #

Proposal for a directive
Recital 30

(30) To this effect, it should be permissible for registered design right holders to prevent the entry of infringing products and their placement in all customs situations, including, in particular transit, transhipment, warehousing, free zones, temporary storage, inward processing or temporary admission~~, also when such products are not intended to be placed on the market of the Member State concerned~~. 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 of the Council29 , also 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. _________________ 29 Regulation (EU) No 608/2013 of the European Parliament and of the Council of 12 June 2013 concerning customs enforcement of intellectual property rights and repealing Council Regulation (EC) No 1383/2003 (OJ L 181, 29.6.2013, p. 15).

Amendment 28 #

Axel VOSS

Proposal for a directive
Recital 33

(33) The purpose of design protection is to grant exclusive rights to the appearance of a product, but not a monopoly over the product as such. Protecting designs for which there is no practical alternative would lead in fact to a product monopoly. Such protection would come close to an abuse of the design protection regime. If third parties are allowed to produce and distribute spare parts, competition is maintained. If design protection is extended to spare parts, such third parties infringe those rights, competition is eliminated and the holder of the design right is de facto given a product monopoly.deleted

Amendment 29 #

Proposal for a directive
Recital 34

(34) The repairability of products is at the core of a sustainable economy, as highlighted in the European Green Deal and in the resolution of the European Parliament of 12 July 2023 on 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/EC. 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~~, 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.

Amendment 30 #

(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, 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.

Amendment 31 #

Proposal for a directive
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 form-dependent 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 about the ~~origin~~identity of the manufacturer of the product to be used for the purpose of the repair of the complex product.

Amendment 32 #

Proposal for a directive
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 ~~form-dependent~~ 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~~producer of the product to be used for the purpose of the repair of the complex product.

Amendment 33 #

Proposal for a directive
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 form-dependent 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 about the ~~origin~~producer of the product to be used for the purpose of the repair of the complex product.

Amendment 34 #

Proposal for a directive
Recital 37

(37) In order to improve and facilitate access to design protection and to increase legal certainty and predictability, the procedure for the registration of designs in the Member States should be efficient and transparent and should follow rules ~~similar to~~that are harmonised with those applicable to EU designs.

Amendment 35 #

Proposal for a directive
Article 3 – paragraph 3 – point a

(a) if the component part, once it has been incorporated into the complex product, remains ~~vis~~perceptible during normal use of the latter; and

Amendment 36 #

Proposal for a directive
Article 3 – paragraph 3 – point b

(b) to the extent that those ~~vis~~perceptible features of the component part fulfil in themselves the requirements as to novelty and individual character.

Amendment 37 #

Proposal for a directive
Article 10 – paragraph 2

2. A registered design shall be registered ~~for a period of five years calculated~~ from the date of filing of the application for registration and until five years after the date of registration by the Office. The right holder may have the term of protection renewed for one or more periods of 5 years each, up to a total term of 25 years from the date of ~~filing of the application for~~ registration .

Amendment 38 #

Proposal for a directive
Article 14 – paragraph 1 – point c

(c) by virtue of a final decision of the competent court or authority, the holder of the design right is not entitled to it under the law of the Member State concerned;

Amendment 39 #

(a) any natural or legal person who can prove a legitimate interest;

Amendment 40 #

Proposal for a directive
Article 16 – paragraph 3 – subparagraph 1

By way of derogation from Article 9(1), the holder of a registered design right shall be entitled to prevent all third parties from bringing products, in the course of trade, from third countries into the Member State where the design is registered, ~~that are not released for free circulation in that Member State,~~ where the design is identically incorporated in or applied to those products, or the design cannot be distinguished in its essential aspects from such products, and an authorisation has not been given.

Amendment 41 #

Proposal for a directive
Article 19 – paragraph 1

1. Protection shall not be conferred on a registered design which constitutes a component part of a complex product, ~~upon whose appearance the design of the component part is dependent, and~~ 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.

Amendment 42 #

Proposal for a directive
Article 19 – paragraph 1 Directive

1. Protection shall not be conferred on a registered design which constitutes a component part of a complex product~~, upon whose appearance the design of the component part is dependent,~~ and 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.

Amendment 43 #

Proposal for a directive
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 ~~origin~~identity of the manufacturer of the product to be used for the 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. The ‘manufacturer’ is to be understood as defined in Article 3, point (8), of Regulation (EU) 2023/988 on general product safety.

Amendment 44 #

Proposal for a directive
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 ~~origin~~producer (as defined in Art. 2 (e) of Directive 2001/95/EC) of the product to be used for the 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.

Amendment 45 #

Proposal for a directive
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, with detailed information about the ~~origin~~producer 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.

Amendment 46 #

Proposal for a directive
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 shall, by way of derogation from paragraph 1, continue until …[OP please insert the date = ten years from the date of entry into force of this Directive] to provide that protection for designs for which registration has been applied before the entry into force of this Directive.deleted

Amendment 47 #

Axel VOSS

Proposal for a directive
Article 19 – paragraph 3

3. ~~Where at the time of adoption of this Directive the national law of a Member State provides protection for~~Paragraph 1 doesigns within the meaning of paragraph 1, the Member State shall, by way of derogation from paragraph 1, continue until …[OP please insert the date = ten years from the date of entry into force of this Directive] to provide that protection for designs for which registration has been applied before the entry into force of this Dir not apply to a design registered before the date of entry into force of this Directive, for which, at the time of the adoption of this Directive, the national law of a Member State provides protectiveon.

Amendment 48 #

Proposal for a directive
Article 19 – paragraph 3

Amendment 49 #

Proposal for a directive
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 shall, by way of derogation from paragraph 1, continue ~~until …[OP please insert the date = ten years from the date of entry into force of this Directive]~~ to provide that protection for designs for which registration has been applied before the entry into force of this Directive, in observance of Article 26 of the Agreement on Trade-Related Aspects of Intellectual Propery Rights.

Amendment 50 #

Proposal for a directive
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 D 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.Article 24 deleted Registration symbol

Amendment 51 #

Proposal for a directive
Article 24 – paragraph 1

Directive 98/71/EC
Article 24

The holder of a registered design right ~~may~~shall 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 DTM 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.

Amendment 52 #

Proposal for a directive
Article 31 – paragraph 1

1. Without prejudice to the right of the parties to appeal to the courts, Member States ~~shall~~may provide for an efficient and expeditious administrative procedure before their offices for the declaration of invalidity of a registered design right.

Amendment 53 #