How EU Design Law Reform Protects Designs in the Digital Age

European design law had lacked fundamental reform for a long time. After more than 20 years, Regulation (EU) 2024/2822 of 23 October 2024 (the EU Design Regulation) and Directive (EU) 2024/2823 of 23 October 2024 (the EU Design Directive) have brought about numerous necessary modernizations to European design law. Phase One of the EU Design Regulation will be directly applicable in EU member states from May 1, 2025. Phase Two will take effect from July 1, 2026. The EU Design Directive must be implemented into national law by the EU member states no later than December 9, 2027.

In addition to numerous changes and standardizations in the application procedure—such as abandoning the requirement for uniform Locarno classification in the context of multiple applications and introducing a simplified official fee structure—the reform focuses, in particular, on adapting design law to digital and technological developments.

It is worth examining the adaptations to the protection of pure digital designs introduced by the reform, the resulting possibilities for design protection, and the unresolved question of how design protection relates to artificial intelligence (AI)—an issue excluded from the scope of the EU design law reform.

Digital Designs—Design Protection in Virtual Environments

According to Article 3(1) of the EU Design Regulation, a design is defined as “the appearance of the whole or a part of a product resulting from the features, in particular the lines, contours, colors, 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.”

According to Article 3(2)(b) of the EU Design Regulation, the definition of products is extended to “any industrial or handicraft item, other than a computer program, regardless of whether it is embodied in a physical object or materializes in a non-physical form, including: […] (b) graphic works or symbols, logos, surface patterns, typographic typefaces, and graphical user interfaces.”

The interplay of these extended definitions of “design” and “product” indicates protection for purely digital designs in virtual environments. It makes clear that design protection does not depend on the existence of a physical item and includes animated representations of a product. Design protection therefore also clearly applies to products that are reproduced exclusively “on screen,” without requiring a physical counterpart.

According to the product definition, pure graphic works or symbols, as well as graphical user interfaces, are eligible for protection. This means design protection is offered in particular for both static and animated representations of characters and items in games, animated films, and in the metaverse.

The registration practice of the European Union Intellectual Property Office (EUIPO) already recognizes the protection of non-physical products (for example, graphical user interfaces) and the visual representation of animated designs through a coherent sequence of images (see EUIPO Design Guidelines 5.3.6 “Sequence of snapshots (animated designs)”, Edition 2024). However, the clarifications provided by the definitions (used identically in the EU Design Directive) and the resulting standardization of the protection of digital designs are highly appreciated, as they reflect a design law open to technological developments.

New Technical Means to Represent Animated Designs

The question of which technical means may be used to represent animated digital designs in future design applications has not yet been determined. Corresponding amendments to the implementing regulations and the EUIPO Design Guidelines are expected by July 1, 2026. However, Article 26(1) of the EU Design Directive stipulates for the harmonized national design law of the EU member states that the representation of the design “may be static, dynamic or animated and shall be effected by any appropriate means, using generally available technology, including drawings, photographs, videos, computer imaging or computer modelling.”

Article 26(6) of the EU Design Directive requires the national IP offices of the EU member states and the EUIPO to cooperate to establish uniform standards for, among other things, the “requirements and means of design representation […] as well as the technical specifications for the means to be used for the reproduction, storage and filing of designs, such as the formats and size of the relevant electronic files.”

Against this background, one can expect EU-wide standards for the representation of animated digital designs. Considering the representation of animations using video files, this is not an absolute novelty, as the EUIPO already recognizes the use of MP4 files in the context of applications for audiovisual multimedia trademarks (for example, for logo animations). The crucial question for design applicants will primarily focus on how they represent the animated design in the video in order to achieve an optimal scope of protection.

Designs and Copyright—Twofold Protection of Digital Products

The explicit opening of design protection for pure digital products, including animations, should noticeably increase the attractiveness of registered EU designs, especially for the entertainment industry. For creative works in games or animated films, for example, which fall under the new design and product definitions, protection under copyright law is likely to remain the first choice, especially as it grants a considerably longer term of protection. Article 96(2) of the EU Design Regulation clarifies in this respect that EU designs can also be protectable under copyright law, provided that the requirements for copyright protection are met. Therefore, both types of intellectual property (IP) rights can coexist for the product in question.

With regard to the European concept of a “work” under European copyright law and the InfoSoc Directive 2001/29/EC, according to the case law of the European Court of Justice, “if a subject matter is to be capable of being regarded as original, it is both necessary and sufficient that the subject matter reflects the personality of its author, as an expression of his free and creative choices” (CJEU, 12 September 2019, in Case C-683/17, Cofemel v G-Star, para. 30). In terms of creative quality, this goes beyond the requirements for the protection of an EU design—namely, novelty and individual character compared to prior art—but will regularly be the case for new creations.

Design protection for creative individual elements of, for example, a video game (be it the appearance of the main characters and their “signature moves,” or items such as equipment or weapons) might therefore generally not replace the primarily intended copyright protection but will be a useful addition. Such additional design protection appears to be advantageous for facilitating rights enforcement, as, for example, the potentially complex proof of copyright ownership or the existence of a work in the sense that the above-mentioned CJEU requirements would no longer be necessary, and only the scope of protection under design law would have to be shown against prior art. In this context, EU designs also offer valuable protection options for purely AI-generated content, which, as the law stands, is denied copyright protection in the EU.

The Intersection of Design Rights and AI

The EU Design law is neutral or uncertain when it comes to the question of who has designed the product concerned. Therefore, it does not matter whether an algorithm, a chimpanzee (remember the monkey copyright issue—Naruto v. Slater, 888 F.3d 418, 9th Cir. 2018), or any other agent is the designer, as the item remains registrable as long as it meets the requirements for a valid registration— regardless of human involvement.

An example of AI-generated designs is the 2019 KARTELL A.I. CHAIR, which Philippe Starck claimed to have entirely designed with a generative CAD (computer-aided design) software, submitting a very generic prompt: “How to support human body with the least possible quantity of material and energy?” Exclusive rights over the Italian design company’s “AI family” of products were never questioned, although the designer provocatively denied human intervention in the creative process.

As discussed, and although EU designs are “agnostic” when it comes to their origin, the same European Parliament was conscious of a technological transition, as evidenced by both the report of October 30, 2023, on the proposal for the EU Design Directive, and the resolution of March 14, 2024, regarding the proposal for the EU Design Regulation. In fact, a parliamentarian introduced an amendment that specifically mentioned AI as a supportive tool contributing to the growing adoption of 3D printing technologies across various industrial sectors. This legislative change has been incorporated into both Recital 27 of the EU Design Directive and Recital 14 of the EU Design Regulation, with the final versions of both published on October 23, 2024.

The Risk Posed by Design Trolls

An issue related to the proliferation of AI-generated designs is that of design trolls—non-practicing entities that accumulate portfolios of industrial rights for the specific purpose of seeking damages from third parties for violating their exclusive rights. This is a common practice in the patent field (so-called patent trolls), but the reduction in costs for designing new drawings due to the widespread use of generative CAD, combined with the irrelevance of qualified human input, could suggest an extension of design law as well.

This is particularly relevant since Article 11 of the EU Design Regulation provides for a three-year protection period for unregistered designs starting from the first date of public disclosure. In such a case, the burdens of registration could be overcome through the mass publication of AI-generated designs, with an expectation of enforcing rights for three years against designs that are substantially similar to those disclosed.

Given the potential risk of design trolls attempting to exploit AI outputs, institutions or legislators should clearly address the registrability or protection of AI-generated designs—whether registered or unregistered—and clarify whether publicly disclosed AI designs could constitute prior art under EU law.

Input Side—Training of Generative Platforms with Registered Designs

The generative capability of AI is directly proportional to the quantity and quality of the training data used.

Although the exclusive rights arising from the registration of designs were conceived to operate in the physical realm, new Article 19 of the EU Design Regulation allows the design rights to prohibit the creation, downloading, copying, sharing, or distribution of any software medium which records the design for the purpose of enabling a product to be made.

Even though this extension of EU design protection was introduced to address infringements in the context of 3D printing, one might wonder whether the use of data deriving from registered EU designs for commercial machine learning activities—without the owner’s authorization—constitutes a violation of exclusive rights. If so, a specific exception would be necessary to allow such use, perhaps even on a paid basis, as some scholars have proposed regarding the computational analysis of copyright-protected works.

An interpretative reading, albeit in the absence of opinions on the matter, could consider the aforementioned activities—at least downloading, copying, and sharing—as preliminary steps to the extraction of text and data from the design and, therefore, subject to the authorization of the rights holder. This interpretation is further supported by Article 53(1)(b) of the EU AI Act, which imposes an obligation on providers of general-purpose AI models to protect the IP rights of third parties, suggesting that compliance duties extend beyond mere adherence to copyright law.

Given the potentially far-reaching consequences of such an extensive interpretation of the rules, which could hinder AI training activities, one could argue that if European lawmakers had intended to include the right of text and data mining among the controls of the design rights holder, they would have indicated this explicitly, if only to ensure systematic consistency with the regulatory framework defined by Directive 790/2019 and the EU AI Act.

This landscape of potential uncertainty suggests that the legislature should already provide clarification.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest.

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