A design proposal based on out-of-date assumptions

The review of the EU’s rules on industrial design was widely welcomed when it was first announced in the Intellectual Property Action Plan. However, now that the proposals have been presented, they seem to be based on old, out-of-date assumptions. The impact assessment covers the same topics and arguments that were discussed when the current rules came about, more than 20 years ago, and fails to consider advances and developments that have happened since then.

The Confederation of Swedish Enterprise holds the opinion that it is important to modernise and further harmonise the EU legislation on design protection. Creating design protection for the EU took several important steps, not the least in creating a protection with a design approach. This approach provides the foundation of a protection that is largely still fit for purpose. However, there are some concerns over the proposal.

One, of course, is that the reasons for the underuse of design protection have not been addressed. Can a lack of knowledge be the only cause? Or does the protection, as a result of the lack of formal examination, not grant an actual protection? This lack of formal examination leads to uncertainty over the nature of the protection.

The analysis of what effect the different proposals might have has unfortunately not updated to take account of a number of new developments. When the European Commission launched the idea of modernising the design protection it appeared that the aim was to meet the needs of today and the coming future. However, the description of the currently reality appears as if - more or less - nothing has changed since the existing legislation entered into force.

Topics that should have been part of an analysis include, for example:

• The effect of increasing digitalisation. An example of this is additive manufacturing that leads to the development that three-dimensional objects can be transferred in the form of binary code. There are no proposals as to how this will be addressed, despite the fact that the Commission is already well aware of what happened to copyright protection when film and music was converted into binary code.
• The perspective of sustainability. As part of the Green Deal, there have been a number of initiatives taken over the circular economy and the right to repair. This should have been made part of the analysis for design protection to act as an incentive for those involved in designing for a circular economy.
• European competitiveness should be a focus for the modernisation of any IP rights. Therefore, there should have been more of comparative analysis of the legal developments in other parts of the world. What we can see is that other countries, such as China, are strengthening protection for the supply of spare parts. If European companies do not have the possibility to protect their market for spare parts on their home markets, it may impact their capabilities to compete with companies from outside Europe.
• The role of IPR in competitiveness. When discussing the role of IPR from the perspective of competitiveness, the emphasis is often on the role of the SMEs; this has also been a focus of the Intellectual Property Action Plan. Aside from the discussions on raising awareness, there has been little attention directed to what actually benefits these SMEs.

A legislative proposal will never be better than the analysis that it is based upon. The proposal on new rules on industrial design is based on old and out-of-date assumptions. For this reason, it cannot meet the needs of today, never mind the needs of the years to come.