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New EU design rules adopted but AI opportunity missed

European law makers have missed an opportunity to implement specific rules governing AI-created designs following the adaptation of the new EU design protection rules, an intellectual property law expert has said. 

The European Parliament has recently adopted the Design Reform package with aims of making design rights fit for the digital age, more attractive to firms, especially small and medium sized enterprises, it is also hoped that the update will help drive sustainability.

The reform package was first presented in November 2022, and consists of a new regulation for community designs – now re-named EU design – and a new directive regulating the harmonisation of design rights at member state level. Both pieces of legislation will come into force 20 days after their official publication, with the regulation starting to apply four months after that while the directive will have to be implemented by member states into national law within 36 months. The adoption comes after the Council of the EU and the European Parliament reached a deal on the reform package in December 2023.

“Overall, the design reform package will not revolutionise design law but provides for a careful evolution. From a practical perspective, especially the increased possibilities on how designs can be visualised for registration could drive innovation,” said IP and brand protection expert at Pinsent Masons Dr Fabian Klein.

For example, designs created through 3D printing can now be visualised and registered. Further, the reforms facilitate the protection of industrial designs, which could include digital representations of designs, such as 3D models or digital renderings.

“Notably, the new rules do not provide for a limitation on the number of images that can be submitted as part of an application which will likely facilitate the registration of more complex designs. Also, visual disclaimers will play a bigger role in identifying exactly what protection is sought, or granted,” Klein said.

One of the biggest changes will be the introduction of an EU-wide repair clause. Under this, spare parts may not enjoy design protection if these are ‘must-match’ parts whose appearance is dependent on the appearance of original parts. Consumers must be provided with sufficient information to be able to tell that they are not buying original parts. As part of the above-mentioned compromise between the Council and the EU Parliament, the transition period under which design protection is still possible was set to eight years.

While the repair clause will put an end to the decade-long dispute on the scope of protection especially in the automotive aftermarket, lawmakers also emphasise that it helps the European Green Deal by driving for repairable and thus more sustainable products.

However, “it could be said that the EU is greenwashing the new design laws by emphasising this aspect so much”, Klein said. The repair clause had been discussed for years solely under economic aspects, not environmental considerations, with recent decisions like the MONZ case in February 2023 or the Audi case in January posing additional obstacles to repairability and the possibility for the spare parts industry.

"Emphasising the repair clause now so strongly in relation to the sustainability benefits that will result is surprising and may perhaps be a way of seeking to deflect broader criticisms of this aspect of the reform package," Klein said.

Florian Traub, brand protection specialist at Pinsent Masons said: “European law makers have missed an opportunity to implement specific rules governing AI-created designs.” Although one of the primary goals of the reform package was to make European design law fit for the digital age, it does not contain any relevant provisions regarding AI, but only improves design protection to some degree for technologies such as 3D printing.

"This missed opportunity is disappointing as AI will undoubtedly have a major impact on the design industries in the near future. This technology will revolutionise how, by whom, and how many designs are created, and will also have a major impact on how to detect and enforce infringements. Businesses and stakeholders will have to base their IP and AI strategy on the existing law and wait to see how the courts apply this to AI technology in the cases that will inevitably come before them, and probably sooner rather than later,” Klein added.

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