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In April 2021, the European Commission (EC) launched two public consultations to gather evidence and views for a possible reform of the current framework on Community designs. Specifically, the EC launched (i) a consultation regarding Regulation 6/2002 on Community designs; and (ii) a consultation regarding Directive 98/71/EC on the legal protection of designs.

As stated by the EC in its Communication of November 25, 2020, “Making the most of the EU’s innovative potential: An intellectual property action plan to support the EU’s recovery and resilience,” one of the EU priorities is ensuring that innovators have access to fast, effective and affordable protection tools. The communication states that the EC “will review the EU legislation on design protection” to improve the accessibility and affordability of Community design protection.

This initiative replaces the EC evaluation of EU legislation on design protection, based on a comprehensive public consultation and major economic and legal studies. This evaluation was aimed at examining whether current legislation on Community designs (i) fulfilled its objectives; and (ii) remains updated considering the technological developments since its entry into force. Generally, the evaluation concluded that the framework on Community designs remained appropriate and fulfilled its purpose. However, there are certain deficiencies to be addressed so that the legal framework can be modernized and, above all, adapted to the digital age. The most remarkable deficiencies are: (i) the lack of clarity and robustness of certain key elements for design protection (the content and scope of rights, limitations and their relation to copyright); (ii) somewhat obsolete or overly complex procedures; (iii) the inappropriate level and structure of fees; (iv) inconsistent procedural rules; and (v) a spare parts market that continues to be strongly fragmented.

The new public consultations fall within this context of reform, and they are aimed at supplementing the previous extensive consultation on design protection. The EC seeks to gather (i) the views of all stakeholders or parties concerned on various matters; and (ii) policy options with their corresponding impact regarding design protection in the EU. In particular, the EC seeks views on the deficiencies of the current legislation, as found in the evaluation mentioned above.

Both consultations target different categories of stakeholders or parties concerned, including: (i) all sectors of industry, businesses and designers owning or creating designs; (ii) EU bodies and associations representing the various economic sectors; (iii) Member States and national authorities; (iv) the judiciary, legal professionals and scholars; and (v) the general public, consumers, consumer organizations and civil rights associations.

The deadline for the parties concerned to submit their responses is July 22, 2021. We will continue to pay attention to any developments on this matter and, generally, to any aspects related to industrial design protection both at national and EU level.

Authors: Josu Andoni Eguiluz and Ainhoa Rey

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josuandoni.eguiluz@cuatrecasas.com