Broader definitions of designs and products provide a legal framework for designs that are developed using current new technologies, without restricting the possibility of future technological innovations.

To encompass new forms of creation, especially digital and virtual environments, such as non-fungible tokens, light effects or dynamic interfaces that have no physical form, the legislation has broadened the definition of a design to include movement, transitions and any other type of animation among the features that can be protected.

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, 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” (Article 3.1, the Regulation; Article 2.3, the Directive).

The definition of “product” is extended to cover the appearance of digital products. A product is defined as 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, including:

• 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.
• Graphic works or symbols, logos, surface patterns, typographic typefaces and graphical user interfaces (Article 3.2, the Regulation; Article 2.4, the Directive).

The extension of the design and product definitions requires the legislator to provide adequate representation means. Accordingly, a design can also be represented by dynamic and animated images. Article 26 of the Directive provides that the reproduction may be static, dynamic or animated, and may be effected by any appropriate means using generally available technology, including drawings, photographs, videos, computer imaging or computer modelling.

It will be interesting to observe the implementation of the rules on representing designs across the various national legislations of the member states. The EU Intellectual Property Office (EUIPO) has indicated that a video clip would be one way of reproducing animated icons or graphical user interfaces, but the technical procedures for filing a design by submitting a video clip have not yet been implemented. The EUIPO amended guidelines, which have been in effect since 1 May 2025, still provide for the provision of seven still design views, which is inadequate to represent a complex animated design, despite the fact that the EUIPO is already capable of processing video files (see more here). 

The EU design reform package makes some simplifications to the filing, prosecution and cost structure of design applications.

Centralised procedure. EU design filing is no longer possible through the national route, making the EUIPO the primary hub for centralised digital filing (Article 35, the Regulation). The EUIPO is a user-friendly platform, so this is a broadly positive change.

Multiple applications. Under previous legislation, all designs within a multiple application had to be classified under the same Locarno class. The Locarno classification is a system used to classify industrial designs. Under the EU design reform package, different designs within the same multiple application, up to a maximum of 50 designs, can now be classified independently, offering advantages in terms of costs and simplicity (Article 37, the Regulation; Article 27, the Directive).

Grounds for refusal. For national designs, member states’ national intellectual property offices (IPOs) will no longer examine novelty and individual character (Article 13, the Directive) (Article 13). This reflects the current position for EU designs. While this change will have minimal consequences in most countries, where this is already standard practice, some jurisdictions, including Finland, Hungary, Czechia and Slovakia, will need to adjust their approach.

Article 13 also allows member states to provide specific grounds for non-registrability. More specifically, member states may 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.

These elements of cultural heritage are considered within the meaning of the Convention Concerning the Protection of the World Cultural and Natural Heritage adopted by the United Nations Educational, Scientific and Cultural Organization (UNESCO) General Conference on 16 November 1972 or, to the extent that they constitute a tangible manifestation of intangible cultural heritage, within the meaning of the Convention for the Safeguarding of the Intangible Cultural Heritage adopted by the UNESCO General Conference on 17 October 2003 (recital 26, the Directive). Tangible manifestations of intangible cultural heritage include, for example, monuments or a group of buildings, artefacts, handicrafts and costumes.

It will be interesting to observe how the refusal of registration on the ground of cultural heritage develops in national jurisdictions. It is expected that there will be increased sensitivity to this ground in some jurisdictions, such as Italy, where attention to cultural heritage is mirrored in a dedicated set of provisions contained in the Italian Cultural Heritage Code.

Cost. The simplification of the cost structure includes streamlined multiple design application fees, and merged registration and publication fees, which align EU design filing procedures with EU trade mark procedures. Renewal fees costs are now higher and will increase with the age of the design. This will require design owners to take a more strategic filing approach for the future. The aim is to encourage the maintenance of only active, market-relevant designs.

Renewal. The calculation of the basic period for renewal for EU designs is aligned with that of EU trade marks. The basic renewal period will now be the six-month period ending on the date of expiry of the registration, not the last day of the month on which protection ends.

Registered rights holders and third parties acting with their consent may inform the public of registration by displaying the symbol Ⓓ on products incorporating a design, specifying that the notice may include the registration number or hyperlink to the entry in the EU designregister maintained by the EUIPO (Article 26a, the Regulation; Article 24, the Directive). The aim of this provision is to facilitate the marketing of design-protected products, in particular by SMEs and individual designers, and to increase awareness of the design registration regimes that exist both at EU and national level (recital 21, the Regulation).

The growing use of 3D printing technologies across different industries, combined with rapid developments in AI, has become a real challenge for design owners that are seeking to effectively prevent illegitimate copies of their protected designs (see Focus “3D printing: the legal implications of an emerging new technology”).

To provide proper enforcement tools that address this developing technology, design holders now have the exclusive right to prevent third parties from creating, downloading, copying, sharing or distributing any medium or software that records the design for the purpose of enabling a product to be manufactured (Article 19(2)(d), the Regulation; Article 16(2)(d), the Directive).

Interestingly, as worded, the provisions seem aimed at preventing the creation or sharing of any media, such as computer-aided design files, which are generally used to print products using a 3D printer. Under previous legislation, this did not constitute a design infringement due to the lack of use of the design itself. These provisions are intended to broaden the boundaries of design protection and it will be interesting to observe if this increases liability risks for platform holders where the information and files for 3D printing templates are shared. Conversely, the private use exception in Article 20(1)(a) of the Regulation and Article 13(1)(a) of the Directive might play a more significant role in this scenario.

New repair provisions have been introduced, which are far more comprehensive than the repair clause under Article 110 of the CDR (Article 20a, the Regulation; Article 19, the Directive) (Article 20a) (Article 19). Article 20a and Article 19 deal with the spare parts and accessories market, with the aim of strengthening aftermarket competition. For national designs, the repair provisions only need to be implemented by 9 December 2032. For EU designs, however, they entered into force with the rest of the Regulation on 1 May 2025.

The repair provisions clarify that there is no protection for a design that constitutes a component part of a complex product for the purpose of the repair of that complex product so as to restore its original appearance. The application of the spare parts exception is limited to EU designs, whether registered or unregistered, that constitute a component part of a complex product on whose appearance the design of the component part is dependent, and that is used within the meaning of Article 19(1) for the sole purpose of the repair of that complex product so as to restore its original appearance.

Manufacturers and sellers of spare parts must inform consumers, through a clear and visible indication on the product or in another appropriate form, about both the commercial origin and the identity of the manufacturer of the product to be used for the purpose of the repair of the complex product, so that they can make an informed choice between competing products that can be used for the repair.

Based on the above and assuming that aesthetic features are covered by an EU design relevant to a spare part, the design right could still be asserted against manufacturers and sellers of the spare parts whenever the spare component does not fully match the original appearance of the restored spare part.

However, these rules leave several questions open regarding how they will be applied and policed in practice across the various EU jurisdictions. An interesting aspect to monitor would be how courts interpret what constitutes a component part of a complex product on whose appearance the design of the component part is dependent. In the past, a lively debate in the Italian courts led to the referral to and the decision of the European Court of Justice (ECJ) in Acacia Srl v Pneusgarda Srl and another; Acacia Srl and another v Porsche AG, which was based on a broader construction of the spare part exception that applied at the time (joined cases C-397/16 and C-435/16).

In the above case law debate, the Italian courts concluded that wheel rims, for example, cannot be considered to be component parts, depending on the appearance of the car, as these components are essentially freeform parts that fit into the aesthetics of the product without being dependent on it. Should this conclusion still stand, components that are not dependent on the overall appearance of the complex product would be excluded by the spare part exception in view of the new limitation in Article 20a and Article 19.

Further implications might arise where a third-party manufactured spare part that fully matches the appearance of the complex product to be restored also reproduces the car manufacturer’s trade mark. This scenario has been considered outside the scope of the repair clause, as outlined by the ECJ in Audi AG v GQ, and might be considered strategically by the design holder to possibly further narrow the scope of protection of the repair clause (C-334/22).

UK businesses that operate in the spare parts market continue to be in a situation where their goods may or may not be infringing depending on the territory in the EU in which they are sold because of the divergence between national and EU-wide rights. Member states have at least two years, and in some cases many more years, to implement the repair clause. This means that UK businesses will need, for the time being, local legal advice on goods that they intend to sell in the various territories in which they operate, rather than being able to rely on the position concerning EU-wide designs. They will also need to ensure that they have carefully followed the notification and due diligence requirements.

Conversely, manufacturers of complex products may find that they have fewer rights in the EU than in the UK. They may also start to rely more heavily on trade marking parts of complex products to use other rights instead.

Article 19(3) of the Regulation and Article 16(3) of the Directive prevent any import of counterfeits into the relevant EU or national internal market, respectively. This enables a registered design holder to bring infringement proceedings in the country of transit or obtain border seizures where the design is identically incorporated or cannot be distinguished in its essential aspects from the original.

Nevertheless, these rights cease to apply if the evidence demonstrates that the design holder is not entitled to prohibit the placing of the products on the market in the country of final destination. Consequently, if the design is not protected in the final country of destination, there is no infringement in transit. The burden of proof lies with the goods holder.

In order to strike a fair balance between the enforcement of design rights and the free flow of trade in legitimate products, the conditions to be met for the exercise of design rights are that:

• Only registered design rights can be enforced.
• The counterfeit goods need to be in transit.
• The counterfeit goods must be identical or be unable to be distinguished from the enforced design that they incorporate.
• The design must also be protected in the final country of destination.

For Community and EU designs, there has always been, and will continue to be, the possibility of bringing invalidity proceedings before the EUIPO. Since validity is presumed in infringement proceedings or border seizures, an invalidity attack is the usual leverage for the alleged infringer to rebalance its position in front of a court and possibly delay the outcome of the infringement proceedings (Article 85, the Regulation; Article 17, the Directive). If invalidity proceedings are already pending before an EU design court, even by way of a counterclaim, or are initiated at the EUIPO before a corresponding infringement action, this can result in a stay of the infringement proceedings, which is often known as a torpedo action.

Now, in addition, the Directive is introducing administrative proceedings for national designs before respective national IPOs, further aligning EU design law to EU trade mark law (Article 31, the Directive). However, unlike EU trade mark law, the introduction of these proceedings is not mandatory for member states.

A design that is protected by a design right which is registered in, or in respect of, a member state in accordance with the Directive is also eligible for copyright protection as from the date on which the design was created or fixed in any form, provided that the requirements of copyright law are met (Article 23, the Directive). The same protection applies with respect to the Regulation.

The possibility of protecting designs through copyright (and not only design rights) is consistent with the well-established principle of rights cumulation. This is noted in recital 12 in the preamble to the Directive, which states that “It is important to establish the principle of cumulation of protection under specific law for registered designs protection and under copyright law, whereby designs protected by design rights should also be eligible to be protected as copyright works, provided that the requirements of copyright law are met.”

The significant debate surrounding the EU design reform package focuses on whether copyright protection conditions for designs should not be a matter of national law but rather should be applied uniformly across the EU, in accordance with settled case law of the ECJ including Infopaq International A/S v Danske Dagblades Forening, Flos SpA v Semeraro Casa e Famiglia SpA, Cofemel - Sociedade de Vestuário SA v G-Star Raw CV and Kwantum Nederland BV and another v Vitra Collections AG (C-5/08, www.practicallaw.com/2-422-4217; C-168/09; C-683/17, www.practicallaw.com/w-024-1486; C-227/23, www.practicallaw.com/w-045-0968) (see News brief “Rowing machine protected by EU but not UK copyright: an unresolved conflict”).

In the UK, there is a closed list of work types that qualify for copyright protection. There has been a tension between the definition of an original work for copyright purposes as set out in EU case law and the application to the UK’s closed list of copyright works, which is broadly incompatible. It will be interesting for UK businesses to observe how member state case law develops in this area and whether there will be room for additional national requirements for copyright protection, rather than simply requiring under ECJ case law that there is a work and that the work is original. This could lead to UK businesses attempting to forum shop in the EU for jurisdictions that are more favourable than the UK when it comes to copyright protection.