The design of a product is often the main reason that consumers chose it over others. Industrial design rights protect the appearance of a product, which results from attributes such as its shape, colours or materials. The EU has harmonised industrial design protection across EU countries and introduced the Community design that offers unitary protection across the EU through a single procedure.
To ensure better coexistence and consistency of the systems of design protection in individual EU countries, the EU adopted Directive 98/71/EC on the legal protection of designs in 1998. The objective of the Design Directive is to ensure that registered design rights give the right holder equivalent protection in all EU countries.
Limiting design protection to the territory of individual EU countries could have led to a division of the internal market and would have constituted an obstacle to the free movement of goods. To prevent this, a unitary design right was established by Regulation No 6/2002 on Community Design in 2002.
The regulation brought into being a one-off, inexpensive procedure for registering designs with the European Union Intellectual Property Office (EUIPO). Those registering designs are granted the exclusive rights to use the design and to prevent any third party from using it anywhere in the EU for up to 25 years. The regulation also provided for 'Unregistered Community Designs' that under certain conditions can also benefit from protection from deliberate copying without prior registration with the EUIPO. In both cases, to be eligible for protection, designs must be new and must have an individual character. The aim of the Community Design system is to ensure accessible design protection that suits the needs of all types of enterprises in the EU.
In 2007, the EU acceded to the Geneva Act of the Hague Agreement on the international registration of industrial designs. This agreement allows applicants to register a design in countries that are party to the Hague Agreement with a single application to the World Intellectual Property Organization.
Accession to the Agreement allows EU companies to obtain design protection not only throughout the EU with the Community Design, but also in the countries which are party to the Geneva Act. It simplifies procedures, reduces the costs for international protection and makes administration easier.
In 2020, the Commission concluded an evaluation of EU legislation on design protection. The results presented in the evaluation report show that EU legislation on designs works well overall and that it is still broadly fit for purpose. However, the evaluation revealed a number of shortcomings that need to be addressed to make the legal framework fit to support the digital and green transition of EU industry, and to become substantially more accessible and efficient for industries, SMEs and individual designers. These shortcomings include in particular a lack of clarity and robustness of certain key elements of design protection (subject matter, scope of rights and limitations), outdated or overly complicated procedures, inappropriate fee levels and fee structure, lack of coherence of the procedural rules and an incomplete single market for spare parts.
The evaluation, launched in 2014, included a comprehensive legal and economic assessment, supported by a series of studies: the Economic review of industrial design in Europe (2015), the Legal review on design protection in Europe (2016) and the Intellectual property implications of the development of industrial 3D printing (2020).
Design is increasingly recognised as key to bringing ideas to the market and transforming them into user-friendly and appealing products or services. A EUIPO and European Patent Office study on IPR-intensive industries found that they generated around 29% of all jobs in the EU between 2014-2016 (direct contribution), with 14% in design-intensive industries. This means that over 30 million Europeans were employed by design-intensive industries in that period.
Design is important for consumers who often choose a product based on how it looks. Well-designed products create an important competitive advantage for producers and companies that invest in design tend to be more profitable and grow faster.
To encourage producers to invest in designs, there needs to be accessible, modern and effective legal protection for their design rights. Currently, there is a broad range of legal tools to protect designs at national and EU level. This gives right holders flexibility and a choice of protection that can be used according to their needs.