EU Design Reform – Briefing Note

EU Design law is changing.

The European Commission has in recent years carried out a detailed economic and legal analysis and two public consultations regarding the design system in the EU. They concluded that the existing system is largely fit for purpose, but that there were ways in which the system could be improved.

In this note, we consider some of the most significant changes introduced by the reforms.

Aims of the reform
According to the European Commission, the changes aim at promoting design excellence, innovation and competitiveness within the EU by ensuring that the design protection is relevant for the digital age, becomes substantially more accessible and efficient for individual designers, design intensive industries and SMEs, and that it contributes to the objectives of the green transition and circular economy. To achieve these objectives, the reform plans to:

• Modernise, clarify and strengthen design protection.

• Improve accessibility of design protection in the EU, including simplifying various procedures.

• Ensure enhanced interoperability of design protection systems in the EU.

• Harmonise the diverging spare parts protection regime across the EU.

Timing
An Amending Regulation with a first set of changes entered into force on 8 December 2024, but the amendments it contains will start applying in two phases:

• Phase 1: Some amendments will apply from 1 May 2025
• Phase 2: Other amendments, including those brought about by secondary legislation (Implementing and Delegated Regulations) will apply from 1 July 2026

In addition, a Recast Directive will require EU member states to make changes to their national legislation by 2028. We will in this note focus mainly on Phase 1.

Phase 1 – from 1 May 2025

Practicalities
The new law introduces several practical changes, potentially affecting filing and maintenance strategies:

• “Community” designs are being renamed to be “EU” designs for consistency with EU trade marks: Registered EU Designs (REUD) and Unregistered EU Designs (UEUD).

• A design notice system is being introduced to facilitate the marketing of registered designs and enhance the visibility of design protection. Design holders, or third parties with their consent, will be able to display a design notice consisting of a letter 'D' enclosed within a circle Ⓓ to indicate that an item is protected by a design registration.

• Multiple design applications will be able to include designs from different Locarno classifications. The end of the “unity of class” requirement will mean considerable official fee savings in certain cases by allowing sets of products that do not fall within the same Locarno class to be filed together. For example, it will become possible to protect in one multiple design application a product and its packaging or an AV set top box and its remote control.

• The number of designs per application will be limited to 50, as the removal of the Locarno Class limitation could otherwise result in multiple applications for very large numbers of designs. This is similar to the UK Designs regime, which also allows a maximum of 50 designs per multiple application when filing electronically and has no Locarno class limitations.

• There will be a simplified fee structure:
  • unification of the registration and publication fees into one single application fee;
  • Flat fee per additional design (no longer any “bulk discount” for designs in excess of 10 filed in the same application).
  • The total official fee for one design will remain the same, and multiple designs containing 10 designs will be cheaper under the new regime.

• Deferred publication is no longer subject to the payment of a publication fee, so design holders can no longer prevent publication by non-payment. Instead, they must explicitly surrender any designs they do not want to be published.

• Renewal fees are increasing, with the increase in the fourth renewal fee being particularly significant. The aim is to try to ensure that only those REUDs that are actually used in the market remain on the Register. This means that it is increasingly important to have a strategy in place to review which Design Registrations need to be maintained.

• The renewal period will now be the six-month period ending on the date of expiry of the registration, no longer on the last day of the month on which protection ends. This aligns with the deadline for renewal of EU Trade Marks.

• There have been some clarifications, including the requirements for obtaining a filing date. Failure to pay the Application fee within one month will result in the loss of the filing date.

Substantive changes
A number of the law changes are more substantive, clarifying and expanding the scope of design protection, and introducing new defences to infringement.

Clarification of law/broadening of definitions
Changes are being made to the definition of both REUDs and UEUDs:

• The definition of “Design” will include animations, which is to be understood as a progressive change of the design feature(s), with or without retaining their identity

• The definition of “Product” will explicitly include:
  • Non-physical form
  • Spatial arrangement of items
  • Logos & surface patterns

A product can be any industrial or handicraft item, other than a computer program, regardless of whether it is embodied in a physical object or materialises in a non-physical form. Digital products will now be covered, and it will, for example, be possible to obtain protection for a shop layout.

In some ways, these changes just serve to clarify existing practice. For example, it was already possible to obtain protection for graphical user interfaces (GUIs), but that has now been made explicit.

The significant caveat on this point is that the changes to representation requirements for EU designs have not yet been introduced and will not do so until Phase 2 of the reforms. Currently, a design application can only include seven static representations of the design, so it will be impossible to capture a complex animation in a meaningful way.

Even once the representation requirements have been clarified, it is not at all clear how the scope of virtual designs will be understood, or precisely what will be protected or what will infringe. What is certain is that we are likely to see some interesting case law as the courts and right-holders grapple with what the rights granted under the new law really mean.

Simplified visibility requirements for design protection
The law is being clarified to indicate that EU Registered Design protection only covers features that are shown visibly in the application for registration.

However, design features will not need to be visible during a product’s use to qualify for protection, except design features of component parts of a complex product, which need to remain visible during normal use of that product to qualify for protection.

3D printing
The scope of the exclusive rights conferred by a design is being adjusted to extend to 3D printing. Under the reformed law, creating, downloading, copying and sharing or distributing to others any medium or software which records the design will be infringing uses of a design.

Blocking unauthorized goods in transit
Design holders will be able to block unauthorized imports of products incorporating their design, even if those goods are not released for free circulation in the Member State. (Previously, there was no prohibition against transit of goods through the EU, provided that products were not destined for sale or use in the EU.)

The revised law matches the provisions for EU Trade Marks.

The ‘repair clause’ – spare parts
To give freedom in the choice of parts to be used in repairs, the existing transitional 'repair clause' is being adopted as a permanent provision to provide clarity on the exception to design protection for spare parts used in the repair of complex products, such as cars. This clause clarifies that there is no protection for a design which constitutes a component part of a complex product for the purpose of the repair of that complex product so as to restore its original appearance. This exception applies exclusively to repair purposes, requiring the replacement part to match the appearance of the original piece (a “must match” situation).

The revised provisions outline the requirements for spare part manufacturers, including the need for sufficient identification of the commercial origin of the product. However, the new law specifies that manufacturers are not obliged to ensure that the component parts they produce or sell are exclusively used for restoring the original appearance of the complex product.

New defences
Two new limitations to the exclusive rights are being introduced by the new law:

• A: Identification and Referencing: acts carried out to identify or refer to a product as that of the design right holder. This aims to enable product interoperability.

• B: Comment, critique or parody: acts carried out for commenting, critiquing or making parody will be permitted. This aims to safeguard the right to freedom of speech.

To fall within these clauses, the acts must “align with fair trade practices and should not unduly prejudice the normal exploitation of the design”. It will be interesting to see how the courts interpret the scope of these defences.

Phase 2: from 1 July 2026

New representation requirements
There is still a lot of uncertainty around how less conventional designs can effectively be represented. Under Phase 2 of the reforms, the number of views for EU designs will no longer be limited to seven. However, the new maximum number of views is not yet known.

There will also be changes to what types of views will be allowed for the new types of designs (including 3D views) and what visual disclaimers, descriptions and technical standards for design representation (including formats and size of acceptable electronic files) will be allowed. However, again, the exact nature of the changes is not yet known.

The Recast Directive states that video files will be permitted as representations, but the precise format is still to be agreed. The updated EU Trade Mark system allows for motion marks, permitting mp4 files up to 20MB in size, so that could be indicative of what may become permissible for designs.

The EUIPO is currently co-ordinating with EU Member States on the convergence of the relevant design filing practices. There may also be issues regarding harmonisation with Hague system, which does not currently allow video files.

Fast track invalidity proceedings
Fast track invalidity proceedings are to be introduced for cases where the holder of the design does not contest the grounds of invalidity. This should hopefully help to reduce the number of invalid designs on the Register.

Future law changes
The Recast Directive will require a number of additional changes to the national legislation of EU member states, which are expected by 2028. Some of the most notable are as follows:

• No more national unregistered designs in EU member states.

• Harmonisation of certain aspects of national registered designs, including:
  • Grounds for non-registrability and invalidity
  • Prior use defence
  • Repair clause (8 year transition period)
  • Deferred publication

In theory, this package of reforms could move EU Design law further from UK Design law, which was harmonised with the EU prior to Brexit but is no longer required to follow EU law. However, the UKIPO is also reviewing the UK designs law regime, with consultations expected in the coming months, so it remains to be seen what direction the UK will choose to take.

Notable omissions
Despite the reforms aiming to make design law fit for the digital age, there are scant mentions of Artificial Intelligence in the legislation. As a result, there remain unanswered questions on how AI-generated designs can be protected and enforced. This is a good example of how difficult it is for legislation to keep up with technological developments, as the proliferation of AI has taken place since the analysis and consultations that led to these changes.

There will also be disappointment for those hoping for certainty around qualification for Unregistered Design right (UEUD). The new law still does not provide clarity as to whether a design must be 'first disclosed' in the territory of the EU for unregistered design protection to arise, or whether it is sufficient for the design to have been disclosed anywhere but so that, in the normal course of business, it could reasonably have become known to the circles specialised in the sector concerned, operating within the EU. The prevailing interpretation in the EU, as adopted in a German court decision, has been that for a design to be capable of unregistered protection in the EU, there must be a first disclosure in the physical territory of the EU. However, there has been no decision of the European Court of Justice on this point, and there is some doubt about this interpretation. The reforms remove a clause in the law which may have led the courts to adopt this interpretation. Whilst the European Commission’s Explanatory Memorandum did not give context to the change, the intended effect of that removal may have been to change the interpretation to one more friendly to designers. However, whether the change has that effect will require the question to be tested in the courts.

To seek to benefit from both EU and UK Unregistered Design rights, some designers have tried simultaneous disclosures of new designs in the UK and EU (for example, by disclosing in one territory while being live streamed in the other). However, whether that approach has the desired effect, under either the current law or following the present reforms, remains unknown.

Conclusion
Overall, the reform package results in a slightly simplified EU design system, which should be beneficial for owners of designs, but there are several areas where unanswered questions remain. There is likely to be some interesting Design case law in the coming years.

Further reading
The EUIPO’s own summary document provides more details.

The new EU design legislation package contains:

• Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 6/2002 on Community designs and repealing Commission Regulation (EC) No 2246/2002 (‘the Amending Regulation’)
  Regulation - EU - 2024/2822 - EN - EUR-Lex
• Directive of the European Parliament and of the Council on the legal protection of designs (recast) (‘the Recast Directive’).
  Directive - EU - 2024/2823 - EN - EUR-Lex

You can also read Caroline's article on 'Big increase in EU Design renewal fees from 1 May 2025' here.

At Abel + Imray we are experienced in obtaining registered design protection in the EU and the UK. We are a European firm and assist our clients to protect their IP rights in the UK, Europe and worldwide from our offices in the UK and The Netherlands and through our international network of trusted local attorneys.