European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

In the field of designs, the European institutions have chosen a minimum harmonization of the only rules having direct effect on the internal market, i.e. those relating to the protection of designs. Directive No 98/71 of 13 October 1998  thus only carries out partial approximation of the laws of the Member States since its scope of application is limited to registration, a condition of the protec …

Scope of application

In the field of designs, the European institutions have chosen a minimum harmonization of the only rules having direct effect on the internal market, i.e. those relating to the protection of designs. Directive No 98/71 of 13 October 1998  thus only carries out partial approximation of the laws of the Member States since its scope of application is limited to registration, a condition of the protection of design . The Member States remain free to fix the rules applicable to the registration procedure, renewal and invalidation of design rights (recital 6). Infringement acts and procedure fall within the general Directive No 2004/48 of 29 April 2004 .

Design is defined in an extensive manner as “the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colors, shape, texture and/or materials of the product itself and/or its ornamentation” (Article 1(a)). The definition given by the directive to the concept of “product” however limits the scope of the protection only to industrial or handicraft item (Article 1(b))  and excludes computer programs which are subject to particular protection . Therefore, only creation of industrial or handicraft design - those for large scale application - and which fulfill the condition of registration, fall within the protection, and the registration formality is used to make a distinction between the design right and the copyright which exists only by reason of the legal fact of creation.

Since no referral for preliminary ruling regarding the interpretation of Directive No 98/71 has been raised to the Court of Justice, reference should be made to judgments rendered on the basis of Regulation No 6/2002 on Community designs  to interpret the measures which are common to both provisions, in particular those applicable to rights granted by registration . The scope of the directive must also be assessed in light of the international provisions, such as the Paris Convention of 20 March 1883 for the protection of industrial property and the Berne Convention of 9 September 1886 for the protection of literary and artistic works.

Directive No 98/71/EC of 13 October 1998 on the legal protection of designs, OJ L 289 of 28 October 1998, 28-35. 

Article 2 1. This Directive shall apply to:

a) design rights registered with the central industrial property offices of the Member States;

b) design rights registered at the Benelux design Office;

c) design rights registered under international arrangements which have effect in a Member State;

d) applications for design rights referred to under (a), (b) and (c).

Product means "any industrial or handicraft item, including inter alia parts intended to be assembled into a complex product, packaging, get-up, graphic symbols and typographic typefaces, but excluding computer programs". Moreover, complex product means "a product which is composed of multiple components which can be replaced permitting disassembly and reassembly of the product" (Article 1(c)).

Directive No 2009/24/EC of 23 April 2009, OJ L 111 of 5 May 2009, 16-22, which repeals and replaces without changing the law Directive No 91/250/EEC of 14 May 1991 on the legal protection of computer programs, OJ L 122 of 17 May 1991, 42. See No 22.44.

Regulation (EC) No 6/2002 of 12 December 2001 on Community designs, OJ L 3 of 5 January 2002, 1.

The regulation lays down two types of protection: registered Community design and unregistered Community design the term of protection of which is limited to three years as from the date on which the design was disclosed to the public and which mainly concerns sectors which manufacture products with short economic life. The registered design is protected for five years against systematic copying and independent development of a similar design, whereas only systematic copying may be prohibited for unregistered design.

European Business Law

280. Scope of application

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Les notions juridiques connexes

280. Scope of application

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Les notions juridiques connexes

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