A comprehensive interpretation of the new EU design registration rules reveals the future of design protection in the digital age

According to Article 14 of Regulation (EC) 2024/2822 and the related guidelines, natural or legal persons from any country in the world may file an EU design patent application. EU design rights belong to the designer or his/her successors. If two or more persons jointly develop a design, the design rights are jointly owned. If a design is developed by an employee in the course of their work or on the instructions of their employer, the design rights belong to the employer, unless otherwise agreed or national law provides otherwise.

Scope of protection

If a design has not been disclosed before the application date or priority date, and the design has individual characteristics and the overall impression on informed users is different from previously disclosed designs, that is, it has novelty and uniqueness, it can be authorized and protected. A design disclosed within 12 months before the application date or priority date will be deemed to be disclosed. If the design is disclosed to a third party under confidentiality conditions or disclosed due to abuse by the designer or his successors, it will not be deemed to have been disclosed. Article 7(2)(b) of the EUDR provides for a grace period of 12 months before the application date or priority date of a European Union design, during which the design will not be deemed to have been disclosed. The grace period starts from the date on which the design was first disclosed .

In April 2020, the European Intellectual Property Network published a circular on the criteria for the evaluation of design disclosures on the internet. Although these circulars are not legally binding, they provide guidance to EUIPO and EU member states. The circulars identify a series of criteria for the evaluation of design disclosures on the internet:

• Common internet sources for design disclosure: websites, apps, email, and file sharing
• Disclosure of relevant data
• Evidence obtained from the internet: printouts, screenshots, images and videos, metadata, URLs and hyperlinks, and written statements

The EUDR, updated on October 23, 2024, states that “design” refers to the features of the appearance of a product, whether in whole or in part, including lines, contours, colors, shapes, textures or materials, whether in physical or non-physical form. It also includes:

• Packaging, sets of items, spatial arrangements intended to constitute indoor and outdoor environments, and parts used as components of composite products
• Graphic works or symbols, logos, surface patterns, fonts and user interfaces
• The updated definitions of “product” and “design” have been expanded to include digital and non-physical design.
• The new regulations also mention 3D printing, which involves "creating, downloading, copying, and sharing or distributing software or media that records designs for the purpose of making products."
• Article 3 of the EUDR defines a complex product as "a product consisting of several replaceable components that enable the product to be disassembled and reassembled." Therefore, components of a complex product are protected if they are visible in normal use and meet the requirements of novelty and individual character. Maintenance, service, or repair work is not considered "normal use."

If the appearance of a product is determined solely by its technical function, or certain interconnected designs of specific shapes and sizes, it cannot be protected as an EU design, such as plugs or car exhaust pipes. Under the new spare parts mechanism, parts used to restore the original appearance of a product are not protected.

Under the new regulation, EU member states must incorporate the mechanism into national law by December 9, 2027. Spare part designs protected before December 8, 2024, will continue to be protected at the member state level for another eight years.

The new EU design reform introduces a simplified fee scheme starting May 1, 2025. The official fee is divided into two parts:

• Registration fee: €350.00 for the first design, €125.00 for each additional design in the same application
• Request for deferred publication: €40.00 for the first design, €20.00 for each additional design in the same application (no publication fee is required for deferred publication. If the applicant does not wish to publish the design, he or she must expressly waive the right to do so three months before the end of the maximum deferred publication period. Otherwise, the EUIPO will automatically publish the design.)