EU Designs Reforms Go Live

Background

The EU design system has two aspects: the harmonisation of national designs, formerly regulated by Directive 98/71/EC, and the unified EU-wide designs, created and regulated by Regulation (EC) No 6/2002.

The EU decided it was time to review these regimes given the time which had passed since their introduction and the swift pace of technological development; the reforms generally are intended to accommodate and anticipate technological advances.  After a consultation process, in December 2024 the EU adopted the following two legislative instruments:

• Regulation (EU) 2024/2822 on EU designs.  This amends Regulation (EC) 6/2002 and repeals Regulation (EC) No 2246/2002, and applies mostly from 1 May 2025, with certain (mostly administrative) provisions applying from 1 July 2026; and  
• Directive (EU) 2024/2823 on national designs ("Directive").  This replaces Directive 98/71/EC and must be incorporated into Member States' national laws by 9 December 2027.

The instruments broadly mirror each other.

There does not yet appear to be a consolidated version of Regulation (EC) 6/2002 as revised by Regulation (EU) 2024/2822; for ease of reference here, we refer to the provisions of Regulation (EC) 6/2002 as amended ("Regulation") rather than to the amending regulation itself.

Substantive amendments to both EU and national designs

Definitions for 'design' and 'product' widened

The definitions for 'design' and 'product' have been widened to cover virtual designs and products:

• “design” now means "the appearance of the whole or a part of a product resulting from the features, in particular the lines, contours, colours, shape, texture and/or materials, of the product itself and/or of its decoration, including the movement, transition or any other sort of animation of those features" (Regulation Art. 3(1) / Directive Art. 2(3)) (emphasis added);
• "product" now means “any industrial or handicraft item other than computer programs, regardless of whether it is embodied in a physical object or materialises in a non-physical form …” (emphasis added).

The definition of product then goes on to illustrate what is included in that term and makes express reference to "packaging, sets of articles, spatial arrangements of items intended to form an interior or exterior environment, and parts intended to be assembled into a complex product", as well as to "graphic works or symbols, logos, surface patterns, typographic typefaces, and graphical user interfaces" (Regulation Art. 3(2) / Directive Art. 2(4)).

Formal representation requirements eased

The formal representation requirements have ostensibly been eased and there is no longer a need to file a physical specimen.  The idea is not only to make it easier to file but also to ensure the system is more suited to depicting transitions and other non-physical designs which are now protectible – but some of the details of that are still to be worked out between the EUIPO and Member States and will come into force on 1 July 2026 for EU designs and in due course for national designs (Regulation Art. 36 / Directive Art. 26).

No in-use visibility requirement for non-complex products 

To be protected, design features of a product must be visible on the application, but need not be visible when in use, except for component parts of complex products, which must be visible when in use to be protected.  Recitals 12 & 13 Regulation and 15 & 16 Directive make this clear.

Repair clause:  no protection for ‘must match’ parts

The Directive introduces a repair clause and the transitional repair clause in the Regulation becomes permanent (Regulation Art. 20a / Directive Art. 19).  It means there will be no protection for ‘must match’ parts, i.e. parts used to repair complex products that must match so as to restore the original appearance of the complex product.  The idea is to open up the spare parts market.  The amendment gives a defence to infringement, provided:

• the part is used "for the sole purpose of the repair of that complex product so as to restore its original appearance", and
• the spare part manufacturer/seller informs consumers about the commercial origin of the part to enable them to make an informed choice.

For national designs, there is a controversial 8 year transition period for this until 2032.  Where national systems provided design protection to spare parts and where registration was applied for before 8 December 2024, that protection can continue to be given until 2032.

3D printing envisaged

Regulation Art. 19(2)(d) / Directive Art. 16(2)(d) prohibit “creating, downloading, copying and sharing or distributing to others any medium or software which records the design for the purpose of enabling a[n infringing] product … to be made.”  The recitals of both instruments make clear that this is intended to deal with the challenges rightsholders face in preventing infringement by 3D printing (Regulation recital 14 / Directive recital 27).

Can enforce over goods in transit

Rightsholders can enforce their rights over goods in transit:  stocking a product incorporating the design for the purposes of making, offering or using it or placing it on the market, importing or exporting it, is prohibited (Regulation Art. 19(2)(c) & Directive Art. 16(2)(c)).

New exceptions to infringement

There are new exceptions to infringement for "acts carried out for the purpose of identifying or referring to a product as that of the design right holder", and "acts carried out for the purpose of comment, critique or parody" (Regulation Art. 20(1) / Directive Art. 18(1)).

 symbol introduced

A  symbol has been introduced; this may be used by registered design holders to inform the public that the design is registered (Regulation Art. 26a / Directive Art. 24).  The symbol may be accompanied by the design's registration number or a hyperlink to its entry in the register, but this is not obligatory. 

The recitals say that this aims to "facilitate the marketing of design-protected products … and to increase awareness of the design registration regimes existing both at Union and national level" (Regulation recital 21 / Directive recital 37).  It will be interesting to see the take up of this.

Multiple applications possible

Applicants can include several designs in one application even if they are in different Locarno classes, to a maximum of 50 designs per REUD application (no maximum is specified by the Directive), subject to a fee for each additional design.  (Regulation Art. 37 / Directive Art. 27)

Cultural heritage exclusions

The Directive permits Member States to "provide that a design is to be refused registration where it contains a total or partial reproduction of elements belonging to cultural heritage that are of national interest” (Directive Art. 13(3)). There is no equivalent in the Regulation, as there is no one EU culture. 

Amendments specific to registered EU designs

Application process simplified

The application process has been simplified. 

Note that applications for EU designs must now be made direct to the EUIPO and not to national offices (Regulation Art. 35(1)).

Can defer publication for 30 months

Deferring publication can be particularly helpful in some circumstances where rightsholders want to ensure protection but not publicly release details of their designs (e.g. in the fashion industry).

Publication can be deferred for up to 30 months after the filing/priority date, subject to payment of a deferment fee (Regulation Art. 36(3)(b) & 50 / Directive Art. 30).  If the applicant then wishes for the design not to be published, they must proactively file a request for surrender at least three months before the expiry of the period of deferment.

Name change

Bringing designs into line with the naming of trade marks, EU designs have had a name change, and instead of Community Designs will be known as European Union Designs.  This means that the Registered Community Design becomes the Registered EU Design (REUD) while the Unregistered Community Design becomes the Unregistered EU Design (UEUD).

Fee revisions for registered EU designs

REUD fees have generally been revised and going forward, official fees will be specified directly in the Regulation.   Registration and publication fees have been consolidated into one single application fee.  Renewal fees have been revised and some fees have been eliminated including fees for recording and registering a transfer.

Fees for filing, deferment and multiple applications for EU designs must be paid within one month.  If an application is deficient, including where payment is not made in time, a two month period is given to rectify deficiencies, but the filing date given to the application will be the date on which the deficiencies are made good (e.g. when payment is made). If the deficiencies are not made good in that timeframe the application will be rejected.

Renewal period

Renewal must be requested in the six month period ending on the date of expiry of the registration, and payment of the renewal fee must be received within that same period.  There is a six month grace period during which renewal can be requested and payment made, along with a late payment fee (Regulation Art. 50d(3)).  Removing the reference to the last day of the month in which protection ends brings EU designs into line with EU trade marks.

Deletion of confusing wording on first disclosure outside EU

As the Regulation was initially drafted, for an EU design to be deemed to have been made available, the event of disclosure could take place anywhere in the world, but it should reach business circles that operate within the EU. When the EU was enlarged in 2004, this was amended to try and regulate the situation where the first disclosure had taken place in a country which had not previously been part of the EU but which then joined the EU. The aim was to stop those designs automatically becoming Community designs; the design had to be disclosed in the EU to get EU protection. 

However, the wording in Regulation Art. 110a caused confusion around whether a disclosure made outside the EU was a valid disclosure.  That provision has now been deleted entirely (by Regulation (EU) 2024/2822 Art. 1(129)); presumably now the previous position stands, i.e. any disclosure anywhere in the world is a valid disclosure provided it could reasonably be expected to reach business circles that operate within the EU. 

Provisions applying from 1 July 2026

The provisions set out above apply from 1 May 2025 except where noted.  Most provisions applying from 1 July 2026 will come from the secondary legislation – implementing and delegated legislation which is still being drafted. The majority of those provisions are administrative in nature, covering for example correction of errors and how the register is to be kept. There are however some substantive provisions, including a new 'fast track' invalidation, grounds for invalidity, and provisions relating to transfer and to amendment and alteration. We will update on these as the secondary legislation progresses.

Design Reforms on the UK and International Stages

The Riyadh Design Law Treaty was adopted in November 2024 by 193 WIPO member states, and requires ratification by 15 countries to come into force. This is principally around formalities and is intended to make international design protection easier, more affordable and faster by streamlining filing dates, administration etc.  It contains provisions including a 12 month grace period to apply for registration after disclosure, and the ability to defer publication for six months. 

In the UK, changes are also afoot and it seems reasonable to expect reforms roughly in line with the European and Riyadh reforms.  In February 2025 the UKIPO opened a survey to "explore the principles which should shape the future of the UK designs system".  The survey closed on 1 April 2025 and we are expecting a full consultation to be launched later in 2025, once the UKIPO has understood users' priorities.  We expect this to address both Riyadh and the EU reforms as well as potential divergence from EU law as considered in the WaterRower case (see our blog here:  The rowing pains continue – no copyright in rowing machine | Fieldfisher).

As an aside and in a slight reflection of the extension of the European regime to 'sets of articles', the UKIPO published Designs Practice Notice 1/24 in August 2024 followed by an update to the registered design examination practice guide. These deal with design applications where a product consists of multiple components (e.g. a canteen of cutlery), and give guidance on whether the product can be accepted as a unitary item on one design application. If it is acceptable, at least one of the 12 permitted views (if filed electronically – the number of views is unlimited if you file on paper) must show the set of articles in its entirety. 

Further assistance

For assistance with understanding the practical implications of these changes on your business, please contact your usual Fieldfisher adviser or email us on IP@fieldfisher.com.