Background
In November 2022, the EU Commission published proposals to amend the Community Design Regulation and to recast the Design Directive. The aim of both proposals is to streamline and simplify the proceedings, enhance harmonization and improve the functioning of design legislation inter alia with regard to novel forms of designs and reproduction technologies, providing a more robust catalogue of limitations and a liberalization of the spare parts market and finally clarifying the relationship with copyright. The proposal thus touches on fundamental issues that have been the subject of research at the Institute for quite some time. The CJEU’s Cofemel decision (C-683/17) has once again attracted attention to the interplay of design and copyright protection (see Kur, Annette, Unité de l’art is here to stay – Cofemel and its consequences, Journal of Intellectual Property Law & Practice 15, 4 (2020), 290–300; Endrich-Laimböck, Tobias, Little Guidance for the Application of Copyright Law to Designs in Cofemel, GRUR International 69, 3 (2020), 264–269), which, like the role of reproduction technologies, is also the focus of Marc Huckschlag’s and Rebeca Ferrero Guillén’s ongoing dissertation projects funded by the Institute.
Goals and Content of the Project
Building on previous research of the Institute, the project aimed to critically comment on the specific reform proposals and thus contribute to the scientific debate surrounding the future of European design law. The focus of the project lies on substantive law. The Institute welcomes the overall aim of the proposals. However, some points deserved further comment and clarification. Inter alia, this includes potential clashes with international obligations, the relationship with copyright protection after Cofemel and the catalogue of limitations. From the perspective of international law, the deletion of a provision according to which protection as a non-registered design only arises upon publication within the territory of the EU was particularly welcome. The current draft of the regulation retains that deletion, in line with the Institute‘s position statement. Regarding the relationship with copyright, the proposal accepts the principle of cumulation as laid out in Cofemel, but does not improve legal certainty. Likewise, the expansion of the limitations catalogue is appreciated in principle, while it leaves a number of open questions and ambiguities.
Dissemination
A position statement on the original proposals has been published on SSRN, as well as in GRUR International, and has been taken up by commentators. In addition, the authors of the position statement have presented their findings to both stakeholders and academic audiences in Germany and abroad.
Publications
Kur, Annette; Tobias Endrich-Laimböck; Marc Huckschlag, Substantive Law Aspects of the ‘Design Package’, GRUR International 72, 6 (2023), 557–565, External Link (DOI)
Kur, Annette, Finally Back to Trips-Compliance? EU Design Law and the Criterion of Publication 'Within EU Territory', Journal of Intellectual Property Law & Practice 18, 1 (2023), 11–17, External Link (DOI)
Kur, Annette, Conference Report: 11th GRUR meets Brussels Workshop – Recent Developments in European Trademark and Design Law, GRUR 125, 20 (2023), 1435–1437.
Endrich-Laimböck, Tobias; Marc Huckschlag, Copyright/Design-Cumulation under the EU 'Design Package', Kluwer Copyright Blog 2023, External Link
