New Report Provides Guidance on Protecting Industrial Designs in Europe

Published: March 29, 2023

Claudia Csáky

Claudia Csáky Graf Isola Vienna, Austria Copyright Committee

Philipe Kutschke Bardehle Pagenberg Partnerschaft mbB Munich, Germany Copyright Committee

A new report titled Enforcement Strategies for Designs as an Applied Art – Europe, from the Designs Subcommittee of the Copyright Committee, covers the laws of the European Union and several European countries (outside the EU). It serves to provide brand professionals with a quick and easily accessible overview of the protection and enforcement of industrial designs. Although an EU reform on design law is currently underway, based on the draft regulation and draft directive as published so far by the EU Commission, this report should be applicable to a broad extent even after the new laws come into force.

The report provides guidance under different aspects of intellectual property law (copyright law, design law, and trademark law), with a focus on potential enforcement strategies in various European jurisdictions. The report not only deals with substantive law (including remedies available), but also summarizes procedural aspects.

The report begins by explaining the legal situation in various EU member states, starting with the underlying law of the EU, inter alia the EU Trademark Regulation and the Community Design regulation. In this context, copyright law, with regards to the protection of industrial designs, is far from being fully harmonized within the EU. Therefore, copyright protection of industrial design in general has to be assessed on the basis of the national laws of individual EU member states. However, in terms of copyright protection, the European Court of Justice has established a certain level of harmonization. As such, industrial designs may enjoy parallel copyright protection, design protection, and trademark protection in all EU member states that have been examined in the report, provided that the respective legal requirements are met. The report also briefly summarizes the respective legal requirements.

The report then turns to the legal situation in certain European countries outside of the EU, and allows a simple comparison with the situation in the EU by covering the same topics mentioned above. Notably, the legal situation in these countries is quite similar to that in the EU member states, whereby some of these countries have expressly considered EU regulations and EU case law when drafting their national provisions. As a consequence, industrial designs may be protected by copyright, design, and trademark laws in these countries.

Providing a starting point for examining whether a legal remedy for the enforcement of a design is available at all, the report is a useful tool for brand professionals who need to quickly ascertain whether design rights can be enforced in the EU or in a given country in Europe and, if so, on what legal basis.

Finally, the report shows that the laws regarding the protection of industrial designs are quite similar throughout Europe. Although there are certain differences based on the respective national laws, the substantive requirements to obtain protection are basically very similar. This is particularly the case concerning the EU member states because the laws are harmonized to a great extent. Notably, many non-EU countries implemented laws that apply the same principles as EU countries. The main differences do not concern substantive law on the protection of designs but rather the remedies available in case of infringements and procedural aspects. It also becomes clear that the effectiveness of anticounterfeiting measures throughout Europe differ. Enforcing design rights in Eastern Europe, especially in non-EU countries, seems to be far more challenging than in Western Europe.

Download and read Enforcement Strategies for Designs as an Applied Art – Europe.

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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