New forms of design will now be protectable in the EU. What do these changes mean for you and how do designs and copyright interact?

What has happened?

• Both the Community Design Regulation (6/2002) and Community Design Directive (98/71/EC) have been updated (the former by Amending Regulation 2024/2822 and the latter by the Recast Directive 2024/2823). 

• The New Regulation will enter into force in two phases: the first phase on 1 May 2025, and the second phase on 1 July 2026. The New Directive has already entered into force, and must be transposed by Member States by 9 December 2027. For an outline of the changes, see our article here.

• The previous legislation was introduced over 20 years ago and technological developments (specifically the digitalisation of the economy) have increased rapidly since then, meaning that the types of designs and products that require protection have changed significantly. This is reflected in new definitions of design and product in both the New Regulation and New Directive. The new definitions apply to both the registered and unregistered forms of design protection. 

• The net effect is that a greater variety of designs are protectable including virtual designs or designs embodied in virtual products. 

How have the definitions of "design" and "product" changed?

The definition of a design is updated to reflect the fact that designs and products are no longer confined to physical products – they increasingly exist in virtual spaces, ranging from digital fashion and NFT’s to graphical user interfaces (GUIs) and 3D-printable objects. Such (virtual) designs with no physical embodiment are now explicitly eligible for protection. More specifically: 

• The definition of a design will now expressly include "the movement, transition or any other sort of animation of" the features of the appearance of the whole or part of a product. While it has always been possible to register dynamic and animated images as designs, in practice, this was difficult due to the design representation requirements. These have also been amended – see below.

• The definition of product is expanded to include 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". Under the previous legislation, design protection only existed for the embodiment of a (physical) product (although that was interpreted broadly).

• The examples of what can constitute a product have also been expanded to expressly include the spatial arrangement of items intended to form an interior or exterior environment (such as a shop layout), graphic works, symbols, logos, surface patterns and graphical user interfaces.

How will the new forms of design be represented on the register?

Under the old legislation, only static images (eg parts of an animation) could be registered, and the registration of an EU-wide Design was limited to seven views per registration. It was therefore practically impossible to register a complex (animated) design. This will now change.

When the second phase of changes under the New Regulation come into force on 1 July 2026, the seven-view limit will be abolished (with the exact number of views allowed to be set out in secondary legislation). Likewise, it will be possible to represent a design in digital form (probably as JPEGs, MP4s etc) in the application as an alternative to using static images. Digital filings will also be possible for national member state registered designs when the New Directive comes into force on 9 December 2027. 

The exact details (file formats, sizes etc) are yet to be worked out and it is likely that the new regime will require some level of coordination between the EUIPO and national IP offices so that they all adopt as similar approach (as was the case when new file formats were accepted for trade marks). However, once these new representation provisions come into force, we should see a greater variety of designs applied for, both at EU-wide and national member state level.

How have the infringement provisions been updated to reflect technological advances?

Another significant change concerns the rights conferred by a design. The old legislation granted the design holder the exclusive right to use the design and to prevent any third party not having the consent of the holder from using it. This use in particular covered “the making, offering, putting on the market, importing, exporting or using of a product in which the design is incorporated or to which it is applied, or stocking such a product for those purposes.”

The new legislation still grants this protection, but now also include the right to prohibit “creating, downloading, copying and sharing or distributing to others any medium or software which records the design for the purpose of enabling a product to be made”. This means the protection is now expressly extended to, for example, 3D-printing if that falls within this provision.

What does this mean in practice?

A greater variety of “designs” are now expressly protectable. This will be particularly relevant to: 

• Creators of digital designs, such as virtual fashion, NFT’s, in-game items and animations.

• Businesses developing metaverse-related assets, including digital goods and environments.

• Creators of light or virtual effects (such as light installations). 

• Store owners with new and individualistic store layouts. 

• Those whose produce 3D-printable designs or whose products are often infringed by 3D-printable designs. These include healthcare, automotive, aerospace, and consumer goods industries.

• Designers of software interfaces, GUIs and digital product designs that were previously unprotected.

• Particular industries affected include fashion, wearables (smart watches etc), consumer goods, gaming, automotive, furniture and those who use GUIs.

Should designs still be relied on as opposed to copyright?

Recently, there has been a move towards designers trying to claim protection for certain works under the law of copyright (which confers a much longer scope of protection), as well as designs.

This has been driven by the fact that what constitutes a work for copyright purposes has been clarified and harmonised across the EU – following the ECJ decisions in Infopaq and Levola, it is now clear that a work need only be original to benefit from copyright protection. The threshold is relatively low – to be an original, a work must simply reflect the author’s own intellectual creation and be an expression of such creation. It has also been driven by the fact that the EUIPO and CJEU has made clear that designs and copyright can be cumulative in certain circumstances – see eg Cofemel.

These developments are largely reflected in the New Design Regulation and Directive. In particular, they clarify that:

• A design eligible for registration as a design may also be eligible for copyright protection as from the date on which the design was created or fixed in any form if the requirements of copyright law are met. 

• The requirements for a work to be protected by copyright have been harmonised in the EU. The previous versions of the legislation stated that the requirements for copyright protection "shall be determined by each Member State".

The new legislation, however, still does not further address the substantive requirements for cumulation. In our view, in most cases, obtaining registered design protection (and not relying solely on copyright) will be sensible since (a) there are likely to be cases where a work does not meet the originality test for copyright (see eg here), (b) in practice, copyright protection in different member states may differ especially where the work is considered (to some extent) technical, (c) proving ownership of copyright can sometimes be difficult and (d) there is no searchable copyright database.