COMMISSION OF THE EUROPEAN COMMUNITIES 
Brussels, 21.02.1996 
COM(96) 66 final - COD 464 
Amended proposal for a 
EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 
on the legal protection of designs 
(presented by the Commission pursuant to Article 189a(2) 
of the EC Treaty) 

EXPLANATORY MEMORANDUM 
GENERAL PRESENTATION 
In January 1994, the Commission submitted to the Council and the European Parliament 
proposals ("the Proposals") for a Regulation on the Community design(1) ("the Regulation") 
and for a Directive on the legal protection of designs(2) ("the Directive"). 
The Economic and Social Committee adopted a first opinion on 6 July 1994(3) and an 
additional opinion on 22 February, 1995(4). 
The European Parliament decided to discuss the proposal for the Directive first and to conduct 
the second reading when it adopts a position on the proposal for a Regulation. Following this 
decision, Parliament adopted its opinion on the Directive during its plenary session 
of 9- 13 October 1995(5). 
In its opinion, Parliament followed the opinion of industries in endorsing the Commission's 
initiative. This positive opinion is, however, subject to 13 amendments. 
Parliament concentrated mainly on the definition of design, the requirements for protection, 
the exclusion from protection of certain elements to promote interoperability of products and, 
in particular, on reproduction for repair purposes. The solutions chosen to resolve these issues 
are also of major importance for the future Regulation, where most material provisions must 
of course be identical to those found in the Directive. 
The purpose of this amended proposal is to take account of these amendments and to clarify, 
where necessary, the wording of a number of provisions. 
The Commission was able to adopt all amendments proposed by the European Parliament 
except one, which concerned the introduction of the idea of a legal assumption of novelty in 
infringement cases before national Courts. In concrete terms, the amendment stated that, in 
such cases, the burden of proof on the existence of a previous and identical design should 
always be assigned to the infringer. Such a provision is not appropriate in the context of the 
Directive, because the latter concerns national registration procedures, and because 
Member States are left free to decide whether they wish to let examining Offices establish 
the novelty of a design prior to registration or not. Where Member States do have an 
examining Office, such a provision would be superfluous at best, because novelty would have 
been established ex officio. Furthermore, and irrespective of the existence of such Offices, 
the provision would make unwarranted inroads on Member State rules on court procedure. 
Both reasons render the provision undesirable in the context of the Directive. 
(1) OJ No C 29, 31.1.1994, COM(93) 342 final. 
(2) OJ No C 345, 23.12.1993, COM(93) 344 final. 
(3) OJ NoC 388, 31.12.1994. 
(4) OJNoC 110, 2.5.1995. 
(i) Not yet published. 
As regards one other amendment, namely that relating to the requirement of individual 
character (Article 5, paragraph 1), the Commission has only with some reluctance been able 
to follow Parliament, because the amendment reduces the "threshold" for protection. 
Moreover, the amendment also has some bearing on the second paragraph of Article 5. This 
provision, which introduced a limitation of the designs with which a comparison was to be 
made when assessing the individual character of a design, was intended to alleviate the effect 
of the relatively high threshold originally proposed by the Commission and to avoid a 
situation where access to protection would have become unduly difficult. As the provision has 
become superfluous after the lowering of the "threshold" requested by Parliament, it was 
deleted in the amended proposal. 
EXPLANATIONS AS TO THE RECITALS 
The only Parliament amendment relating to the recitals is a proposal for a new recital which, 
in turn, is linked to the abovementioned proposal for a provision introducing a procedural 
assumption. As the Commission cannot, as mentioned above, accept that amendment, it can 
only reject the recital referring to it as well. 
The Commission has, on the other hand, introduced six new Recitals: Recital 12a, 
which clarifies the amendment referring to the protection criteria for parts in Article 3(3), 
Recitals 16a, 16b, 16c and 16d, which refer to Article 14 and, more specifically, to the 
remuneration right introduced by Parliament's amendment to Article 14, and, finally, 
Recital 16e, which states the grounds for the new provision relating to a right to information, 
which was included in the amendment proposal as Article 16a, following an amendment by 
the European Parliament. 
For an explanation as to Recitals 12a, 16a, 16d and 16e, reference is made to the explanation 
given in this memorandum in relation as to the Articles to which they refer. Recitals 16b 
and 16c are clarified hereunder. 
Recital 16b 
This Recital clarifies one aspect in the application of the repair clause with a remuneration 
system. In some cases, an agreement between the right holder and the third party as to the 
amount of money which can, in a specific case, be deemed to represent a "fair and reasonable 
remuneration" may be lacking. If the application of the repair clause were to be made 
preconditional upon such an agreement, the third party would sometimes have to wait for a 
considerable amount of time before an agreement is reached and before being able to use a 
design for repair purposes. Where, in some cases, the remuneration would have to be fixed 
through litigation or arbitration over the course of several years, the repair clause would have 
been rendered ineffective. The purpose of this Recital is to avert this danger. 
Notwithstanding this Recital, the right holder remains protected against mala fide third parties 
through the safeguard provision introduced in Article 14, paragraph 4. 
Recital 16c 
This Recital has been introduced to make it clear that the use of the repair clause does not 
in any way establish a relationship between the right holder and the third party which can be 
compared to that existing between a licensor and a licensee. The Recital also states that the 
consumer who chooses to have a product repaired with parts stemming from a third party 
does not thereby derive any rights or claims against the manufacturer of the complex product. 
The remaining amendments to the recitals aim at the clarification of the text or the necessary 
adaptation of the recitals following amendments of the Articles to which they relate. 
EXPLANATION AS TO THE ARTICLES 
In order to make it easier to cross-reference similar Articles which can be found in both 
Proposals, the Commission has added headings to the various Articles for the Directive 
proposal. It is understood, however, that these headings are not legally binding. 
Article 1 
Paragraph (a) 
This paragraph has been changed, in accordance with an amendment adopted by the 
European Parliament, by adding wording to the effect that the design to be protected must be 
"outwardly visible". 
It must first of all be pointed out in this context that the addition of a visibility criterion in 
Article 1 brings into focus a confusion concerning various meanings of the word "part" in the 
English language. In Article 1, the word is used to describe any feature of a product, while 
in Article 3(3) and in Article 14, the word is used to describe, in concrete terms, a component 
part, which is usually also a product in its own right. That is why the word "component" has 
been added to Article 3(3) and to Article 14, that is, whenever the word "part" is used to 
describe, concretely, a component part. 
Bearing this differentiation in mind, the visibility criterion introduced by the 
European Parliament can be looked at more closely. It must be pointed out that the 
Commission does not expect this amendment to entail substantial changes in the application 
of the provision itself. Indeed, this amendment must not be confused with the amendment to 
Article 3, which states that parts, in order to be eligible for protection, have to remain visible 
during the normal use of the complex product they belong to. The criterion introduced in 
Article 1 does not look at the visibility of the part as component part of a complex product, 
as provided for in Article 3(3), but of the appearance of a product or a part thereof. Therefore, 
if a right holder wishes to protect the appearance of, for example, the interior compartments 
of a suitcase (which do not constitute component parts within the meaning of Article 3, 
paragraph (3), but which are a part within the meaning of Article 1), he can do so by 
applying for protection of a part of a product which, in the case of his application, is 
"the compartments of a suitcase". The design for which protection is claimed is then 
outwardly visible. 
Thus, an appearance will only be invisible and lead to exclusion from protection in the rarest 
of cases, such as, for example, the boring of a firearm barrel. However, an exclusion from 
protection for component parts of complex products, which are independent products in their 
own right, may follow from the provision in Article 3, paragraph (3). 
Another change is the addition of the wording "in particular", where the Commission follows 
a proposal of the Economic and Social Committee. The intention of this proposal is to clarify 
that the list of features of appearance is not meant to be exhaustive. 
Finally, the addition of the wording "texture" intends to add a dimension of design which was 
deemed to be lacking in the original proposal. 
Article 2 
Paragraph 2 (new) 
This paragraph has been inserted to clarify that the scope of application of the Directive also 
covers designs in Member States which do not have a formal registration system, but where 
protection is granted after a deposit and official publication of the design. 
Article 3 
Paragraph 3 
To comply with the amendments made by the European Parliament, an extra requirement 
relating to the protection of parts has been added to this paragraph: the visible featiires of 
parts of a complex product can only qualify for protection in their own right if the parts 
are visible during normal use of the complex product. The amendment is especially 
relevant to the automotive-industry, where it means that certain spare parts, the so-called 
"under-the-bonnet" parts, are excluded from protection. 
In order to avoid a confusion as regards the word "part", which, in English, can have two 
meanings, the word "component" has been added to the text (see explanation as regards 
Article 1). 
Paragraph 4 
Following the amendments adopted by the European Parliament as regards paragraph 3, this 
paragraph defines the notion of "normal use". It should be noted that this requirement should 
not be understood to mean that parts must be visible at all times during normal use. in the 
case of a car, normal use can also mean that someone sits in the back of the car, or walks 
around it. The wording does, however, exclude from protection those parts whose design does 
not normally play a role for the consumer because it is only visible during repair or 
maintenance. 
Article 4 
Paragraph 2 (deleted) 
The original paragraph 2 has been amended and moved to Article 6 in the Directive. This 
change is related to the amendment to Article 5, paragraph (2), which made it possible to 
regroup the provisions on the disclosure of the design in a single provision which would be 
applicable both to Article 4 and Article 5. 
Article 5 
Paragraph 1 
Paragraph 1 defines the individual character of a design and, in effect, sets the threshold for 
protection. The European Parliament has wished to lower this threshold by deleting the word 
"significantly". Because the provision still contains the requirement of a different overall 
impression, this deletion does not unduly lower the threshold, and the Commission therefore 
feels it can accept the amendment. 
As a consequence of the lowering of the "threshold", the Commission did, however, feel 
compelled to delete paragraph (2) of the initial proposal, for the following reason. In order 
to alleviate the effect of the relatively high threshold provided for in the original wording of 
paragraph (1), paragraph (2) substantially restricted the designs which were to be taken into 
consideration as comparison material when assessing the individual character of a design. 
Now that the "threshold" has been lowered, such a limitation would be counterproductive, and 
the comparison should therefore be made with any design disclosed before the design in 
question. This wording was easily integrated into paragraph (1). This change, in turn, made 
it possible to have a single Article defining the concept of "making available to the public" 
for Article 4 as well as for Article 5 (see the explanation concerning Article 6). 
Paragraph 2 
This paragraph (paragraph 3 in the original Commission proposal) contains a set of guidelines 
for use by national Courts when assessing the individual character of a design. In this 
assessment, commonalties with a previous design were, originally, to be given more weight 
than differences. The intention of this provision was to make sure that, in order to achieve 
protectability for a new design, it would not be enough to introduce a certain number of 
minor differences to an existing one. However, following its wish to lower the "threshold" 
in paragraph 1, the European Parliament also wanted to give equal weight to commonalties 
and differences. The amendment of the guideline in accordance with these wishes, however, 
deprives it of its specific significance and thereby makes it redundant. The Commission 
therefore chose to delete it in its amended proposal and to restrict the guidance to that relating 
to the freedom of the designer. 
Article 6 
Paragraph 1 
The original Article 4(2) has been transferred to Article 6 since this provision not only 
concerns Article 4, but also Article 5, in its new form. 
The Article has furthermore been amended in accordance with the wishes of the 
European Parliament and the Economic and Social Committee through the introduction of 
what is commonly known as the "safeguard clause". Its aim is to protect the design industry 
from claims that a design right is not valid because there was an earlier design in use 
somewhere in the world where the European industry could not possibly have been aware of 
it. The intention of this provision is to avoid the situation where design rights can be 
invalidated by infringers claiming that antecedents can be found in remote places or museums. 
Paragraph 2 
This paragraph has been transferred from paragraph 1 in the original Commission proposal. 
Paragraph 3 
This paragraph (paragraph 2 in the original Commission proposal) was reworded to clarify 
the case where disclosure is the result of a breach of confidence. There is no change in 
substance. 
Article 7 
Paragraph I 
Although the question whether a design does or does not contain any aesthetic elements is 
irrelevant in the context of the requirements for protection, as set out in the Proposal, the need 
was felt for a provision indicating that protection should not be available in those extremely 
rare cases where form necessarily follows function. Even though Parliament did not adopt an 
amendment concerning Article 7, paragraph (1), the Commission felt that clearer wording was 
needed, especially after the amendment proposed as regards paragraph (2). 
Paragraph 2 
Paragraph 2 has been reworded to allow for the wishes of the European Parliament, which 
sought a clearer definition of the "must fit" clause. The current text is closely modelled upon 
the corresponding provision of the United Kingdom Patents, Designs and Copyright Act 1988. 
Article 8 
The wording of Article 8 has been modified slightly in order to clarify that it is not the 
exploitation or publication of a design, but the design itself which may be contrary to public 
policy or morality. 
Article 9 
Paragraph 1 
The word "significantly" has been deleted in order to follow the wishes of the 
European Parliament. Also, the wording "similar" has been replaced by the wording "not 
different". This negative qualification was chosen to ensure compatibility between the 
formulation of the scope of protection in Article 9, paragraph (1), and the definition of 
individual character given in Article 5(1). Indeed, these provisions have to be worded so as 
to avoid the situation where different interpretations of the wording "similar" and "not 
different" would create a grey area where a design is eligible for protection in its own right 
under the wording of Article 5, and, at the same time, constitutes an infringement of a prior 
design under the wording of Article 9. This danger has been averted through the uniform use 
of the wording "not different". This wording, as used in Article 9, paragraph (1), defines a 
criterion which is an exact mirror image of that defined in Article 5, paragraph (1). 
Consequently, all designs which do not qualify for individual character will be considered to 
be infringing. 
Paragraph 2 
The explanation given for the amendment of Article 5, paragraph (2) also applies to the 
amendment to this paragraph. 
Article 11 
Paragraph 1 
As this provision is intended to provide an exhaustive list of invalidity grounds, several 
grounds which exist in certain Member States, but were missing in the original proposal were 
added in paragraphs (e), (f) and (g). Because the instances of unauthorized use described in 
these new grounds can be prosecuted and prohibited by virtue of the relevant rights, the scope 
of these grounds is rather limited. Their main aim is to ensure that, regardless of the 
possibility of prohibiting infringements, infringing rights can be taken off the design registers, 
thus contributing to keeping these registers "clean". 
Furthermore, the provision which was contained in paragraph (2) of the original proposal is 
now to be found in paragraph (h). This is a drafting amendment only 
Paragraph 2 (new) 
In a number of cases, only minor alterations of the design are required to avoid invalidity. A 
possibility to protect the design in an amended form has therefore been foreseen. 
Paragraph 4 
This paragraph was to be found in Article 16 of the Commission's original proposal and has 
been integrated into Article 11 in the interest of coherence. 
Article 14 
Several important amendments of the European Parliament focused on modalities of the 
repair clause contained in Article 14. 
Paragraph 1 
Where the initial proposal provided free reproduction of certain spare parts after a phase-in 
period of three years, the European Parliament has in its amendments eliminated this phase-in 
period and introduced a remuneration system that will operate as from the date of registration ' 
of the design. 
Further, in order to provide the right holder with the information which is needed to establish 
the correctness of the remuneration paid by the third party, the Commission has introduced 
an additional obligation, namely an obligation for the third party to offer to provide such 
information in a regular and reliable manner. 
In order to avoid confusion concerning various meanings of the word "part" (see the 
explanation concerning Article 1), the word "component" was added to the wording of this 
paragraph. 
Paragraph 2 (new) 
This paragraph was inserted to comply with a European Parliament amendment which 
provided that, when parts falling within the scope of application of the repair clause are 
manufactured outside the Community and then imported, the remuneration must be paid by 
the importer. This provision was slightly modified to guarantee payment of the remuneration 
also in cases of intra-Community trade, when parts are reproduced freely in a Member State 
where the designer or his successor in title has not taken out protection of the relevant 
designs, and are then imported into another Member State where he has. In this last case, the 
Community exhaustion of rights doctrine cannot apply, because its decisive element, namely 
the existence of a situation where a product has been put on the market with the consent of 
the right holder, is missing. 
Paragraph 3 (new) 
The Commission has followed the line set out by the European Parliament, but has added a 
set of guidelines to ensure that the remuneration system functions similarly throughout the 
Community, and that the spare part market becomes a level playing field. 
Existing legislation concerning similar systems provides little guidance as to what is 
considered to be a "fair and reasonable remuneration". Failing agreements by the parties 
concerned, the rate of remuneration is normally decided by domestic Courts. Since 
interference with national procedures needs to be avoided, it did not seem appropriate to deal 
with procedural aspects. However, in order to reduce litigation and/or arbitration, the 
Commission considered that it would be necessary to clarify the basis which should be used 
in calculating the amount of the remuneration. 
The most realistic basis for such calculation seems to be an amount related to the costs 
incurred by the original producer in developing the design. This investment should therefore 
primarily be taken into consideration. 
Paragraph 4 (new) 
In devising concrete guidelines for the functioning of the repair clause with a remuneration 
system, one of the concerns of the Commission is that, in case of manifest abuse of the 
repair clause, a right holder should not be deprived of the effective legal remedy provided 
under national law by an infringement action. This could for example be the case when a 
right holder is confronted with a third party who refers to the repair clause, but who is or will 
evidently be unable or unwilling to pay the remuneration offered by him, or to furnish the 
information which is needed by the right holder to assess if he has received the right 
remuneration. Therefore, the Commission introduced a provision to the effect that, if a right 
holder can provide evidence to sustain such a claim, he can avail himself of such infringement 
procedures as are provided for under national law. 
Paragraph 5 (new) 
This paragraph, which provides for an analysis of the functioning of the repair clause 
five years after the entry into force of the Directive, was inserted to comply with an 
amendment adopted by the European Parliament. Such an analysis will be especially relevant 
in assessing the effects of the repair clause in ensuring the existence of an open market in the 
sector of spare car parts. 
Although the Parliament amendment provided for an analysis of the functioning of the 
Directive as a whole, the Commission considered that it would act in accordance with 
Parliament's intentions by restricting the scope of such an analysis to the effects of the 
repair clause. Indeed, the effects of the Directive as a whole can only be assessed after it has 
been transposed in all Member States, i.e. well into the five-year period, whereas the effects 
of the repair clause could probably be assessed fairly rapidly. 
Article 15 
The extent of the repair clause could have certain repercussions on the provision dealing with 
the exhaustion of rights, contained in Article 15. 
With reference to the cases C-19/84 Pharmon BV v Hoechst AG [1985] ECR2281 and 
C-9/93 IHT Internationale Heiztechnik GmbH and UWE Danziger v Ideal Standard GmbH 
and Wabco Standard GmbH [1994] ECR 1-2789, where the exhaustion was deemed not to 
apply because of a lack of consent, it was thought advisable to clarify that, notwithstanding 
the fact that application of Article 14 may imply that no consent has been given, the 
exhaustion of rights-doctrine still applies. 
10 
Article 16 (new) 
The original Article 16 is now to be found in Article 11(4). 
The new Article 16 has been inserted in accordance with the wishes of the 
European Parliament and the European Economic and Social Committee. It was felt that such 
a provision was needed in this area in order to provide more means to fight counterfeiting. 
The provision is modelled on, albeit not identical to German law. As formulated, it makes it 
clear that, in the case of interlocutory measures, the information can be requested prior to the 
final judgement in an infringement case. 
The provision contained in paragraph (3)(d) states that the obligation to provide information 
cannot run counter to the generally recognised principle of law that one cannot legally be 
compelled to incriminate himself. 
Article 18 
Paragraph 1 
This paragraph has been modified following the suggestion that the Directive on the legal 
protection of designs may not be the appropriate place for the harmonisation of copyright law. 
Paragraph 2 (deleted) 
This paragraph, which contained the requirement of national treatment, required each 
Member State to guarantee nationals of other Member States a treatment which is not less 
favourable than that given to its own nationals with regard to the protection of designs under 
national copyright law. However, according to case C-92/92 Phil Collins v Imtrat [1993] 
ECR I -5145, the principle of national treatment follows from the non-discrimination 
principle in Article 6 EC Treaty, and is thereby already guaranteed by Community law The 
original provision was therefore superfluous, and the Commission deleted it. 
Article 19 
Paragraph 1 
As a result of delays in the procedure leading to final adoption of the Directive, the date by 
which it has to be transposed into national law has been modified. 
11 
Amended proposal for a 
EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 
on the legal protection of designs 
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 
Having regard to the Treaty establishing the European Community and in particular 
Article 100a thereof, 
Having regard to the proposal by the Commission(1), 
Having regard to the opinion of the Economic and Social Committee(2), 
Acting in accordance with the procedure laid down in Article 189b of the Treaty(3), 
(i) 
(2) 
(3) OJ NoC 345, 23.12.1993, p. 14. 
OJ No C 388, 31.12.1994, p. 9 and OJ No C 110, 2.5.1995, p. 12. 
Opinion of the European Parliament of 12 October 1995, OJ No C 287, 30.10.1995, 
p. 157 
Common Position of the Council of ... 1996 (not yet published in the Official Journal) 
Decision of the European Parliament of ... (not yet published in the Official Journal). 
12 
Original proposai 
1. Whereas the objectives of the 
Community as laid down in the 
Treaty include establishing an ever 
closer union among the peoples of 
Europe, fostering closer relations 
between the States belonging to the 
Community, and ensuring the 
economic and social progress of 
the Community countries by 
common action to eliminate the 
barriers which divide Europe, 
whereas to that end the Treaty 
provides for the establishment of 
an internal market and includes the 
abolition of obstacles to the free 
movement of goods and the 
institution of a system ensuring 
that competition in the common 
market is not distorted, whereas an 
approximation of the laws of the 
Member States on the legal 
protection of designs would further 
those objectives; 
2. Whereas designs are not at present 
protected in all Member States by 
specific legislation and such 
protection, where it exists, has 
different attributes; 
3. Whereas such differences in the 
legal protection of designs offered 
by (he legislation of the Member 
States have direct and negative 
effects on the establishment and 
functioning of the internal market 
as regards goods embodying 
designs; whereas such differences 
will distort competition within the 
internal market; Amended proposal 
1. Unchanged. 
Unchanged. 
3 Unchanged. 
13 
Original proposal 
4. Whereas it is therefore necessary 
for the proper functioning of the 
internal market to provide for 
specific design protection law in all 
Member States and to approximate 
the design protection laws of the 
Member States; 
5. Whereas in doing so it is important 
to take into consideration the 
solutions and the advantages with 
which the Community design 
system will provide undertakings 
wishing to acquire design rights; 
6. Whereas it is unnecessary to 
undertake a full-scale 
approximation of the design laws 
of the Member States, and it will 
be sufficient if approximation is 
limited to those national provisions 
of law which most directly affect 
the functioning of the internal 
market; whereas the objectives of 
this limited approximation cannot 
be sufficiently achieved by the 
Member States acting alone; 
7. Whereas Member States should 
accordingly remain free to fix the 
procedural provisions concerning 
registration and invalidation of 
design rights and provisions 
concerning the effects of such 
invalidity; 
8. Whereas this Directive does not 
exclude the application to designs 
of the legislation of the Member 
States other than that relating to 
the specific protection acquired by 
registration, such as the legislation 
relating to unregistered design 
rights, trademarks, patents and 
utility models, unfair competition 
or civil liability, Amended proposal 
4. Unchanged. 
5. Unchanged. 
6. Unchanged. 
7. Unchanged. 
Whereas this Directive does not 
exclude the application to designs 
of national or Community 
legislation providing for protection 
other than that conferred by 
registration or publication as 
design, such as the legislation 
relating to unregistered design 
rights, trademarks, patents and 
utility models, unfair competition 
or civil liability; 
14 
Original proposal 
Whereas the attainment of the 
objectives of the internal market in 
the field of designs may only be 
fully realised following further 
harmonisation of the relevant 
provisions of the copyright laws of 
Member States, in particular those 
relating to the criterion of 
originality; whereas, pending such 
further harmonisation, it is 
important to establish the principle 
of cumulation of protection under 
specific registered design 
protection law and under copyright 
law, whilst leaving Member States 
free to establish the extent of 
copyright protection and the 
conditions under which such 
protection is conferred; whereas it 
is, however, necessary to abolish in 
the relationship between Member 
States the requirement that 
protection under copyright law 
shall be afforded only subject to 
reciprocity in the country of origin 
of the design, as such a 
requirement would run contrary to 
the principle of non-discrimination; 
Whereas the attainment of the 
objectives of the internal market 
requires that the conditions for 
obtaining a registered design right 
be not only identical in all the 
Member States but also identical to 
those required for obtaining a 
registered Community design; 
whereas to that end it is necessary 
to give a unitary definition of the 
notion of design and of the 
requirements as to novelty and 
individual character with which 
registered design rights must 
comply; Amended proposal 
9. Whereas the attainment of the 
objectives of the internal market in 
the field of designs may only be 
fully realised following further 
harmonisation of the relevant 
provisions of the copyright laws of 
Member States, in particular those 
relating to the criterion of 
originality; whereas, pending such 
further harmonisation, it is 
important to establish the principle 
of cumulation of protection under 
specific registered design 
protection law and under copyright 
law, whilst leaving Member States 
free to establish the extent of 
copyright protection and the 
conditions under which such 
protection is conferred; whereas it 
is contrary to Community law to 
apply, in the relationship between 
Member States, Article 2 paragraph 
(7) of the Berne Convention for 
the Protection of Literary and 
Artistic Works, which provides that 
protection under copyright law 
shall be afforded only subject to 
reciprocity in the country of origin 
of the design, as such a 
requirement is incompatible with 
the principle of non-discrimination; 
10. Unchanged. 
15 
Original proposal 
11. Whereas semiconductor products 
should not be excluded as products 
whose appearance could form the 
subject of a design right, since 
Member States may choose design 
legislation to implement the 
provisions of Council 
Directive 87/54/EEC of 
16 December 1986 on the legal 
protection of topographies of 
semiconductor products(4). 
12. Whereas it is essential, in order to 
facilitate the free movement of 
goods, to ensure that registered 
design rights confer upon the right 
holder the same protection in all 
Member States and that this 
protection is identical to the 
protection afforded by the 
registered Community design; Amended proposal 
11. Unchanged*4*. 
12. Unchanged. 
12a Whereas protection should not be 
extended to those component parts 
which are not visible during 
normal use of a product, or to 
those features of such part which 
are invisible when the part is 
mounted, or which would not, in 
themselves, fulfil the requirements 
as to novelty and individual 
character; whereas features of 
design which are excluded from 
protection for these reasons should 
not be taken into consideration for 
the purpose of assessing whether 
other features of the design fulfil 
the requirements for protection; 
(4) OJNoL24, 27.1.1987, p. 36. (4) Unchanged. 
16 
Original proposal 
13. Whereas, in conformity with the 
applicable provisions on the 
Community design, the 
interoperability of products of 
different makes should not be 
hindered by extending the 
protection to the design of 
mechanical fittings; 
14. Whereas the mechanical fittings of 
modular products may nevertheless 
constitute an important element of 
the innovative characteristics of 
modular products and present a 
major marketing asset and 
therefore should be eligible for 
protection; 
15. Whereas it is fundamental for the 
functioning of the internal market 
to unify the term of protection 
afforded by registered design rights 
in conformity with the solution 
adopted for the registered 
Community design; Amended proposal 
13. Whereas technological innovation 
should not be hampered by 
granting design protection to 
features dictated solely by a 
technical function; whereas it is 
understood that this does not mean 
that a design must have an 
aesthetic quality; whereas, 
likewise, the interoperability of 
products of different makes should 
not be hindered by extending 
protection to the design of 
mechanical fittings; whereas 
features of a design which are 
excluded from protection for these 
reasons should not be taken into 
consideration for the purpose of 
assessing whether other features of 
the design fulfil the requirements 
for protection; 
14. Unchanged. 
5. Unchanged. 
17 
Original proposal 
16. Whereas the legal protection of 
design might in certain 
circumstances allow the creation of 
monopolies in generic products and 
captive markets by improperly 
binding consumers to a specific 
make of product, and thus the 
introduction of a provision is 
necessary in order to make the 
reproduction of designs applied to 
parts of complex products possible 
for repair purposes under very 
specific conditions; Amended proposal 
16. Unchanged. 
16a Whereas the limitation in the 
exercise of the rights provided for 
in the context of the use of 
designs for repair purposes should 
be compensated by a fair and 
reasonable remuneration, to be 
calculated primarily on the basis 
of the relevant design 
development costs; 
16b Whereas the exercise of the rights 
of a third party to reproduce parts 
for repair purposes should not be 
made conditional upon agreement 
as to the level of remuneration; 
16c Whereas the use of a design 
under the "repair clause" should 
not create a legal link between 
the right holder and the third 
party using the design; whereas 
the remuneration to be paid 
should not entail an obligation on 
the right holder to transfer know-
how and shall not imply that the 
right holder is considered to be 
the manufacturer of a reproduced 
part as regards, for example, rules 
or agreements regarding product 
liability, warranty obligations or 
product safety requirements. 
18 
Original proposal 
17. Whereas the provisions of this 
Directive are without prejudice to 
the application of the competition 
rules under Articles 85 and 86 of 
the Treaty; 
18. Whereas the grounds for refusal of 
registration in those Member States 
which provide for substantive 
examination of applications prior to 
registration, and the grounds for 
the invalidation of registered 
design rights in all the Member 
States, must be exhaustively 
enumerated, Amended proposal 
16d Whereas, in order to prevent a 
partitioning of the Community 
market, as regards Community 
exhaustion of rights, use of the 
design right by a third party 
against payment to the right 
holder should have the same 
effect as the marketing of a 
product with the consent of the 
right holder; 
16e Whereas, in order to reinforce 
effective action against the 
infringement of design rights, it is 
important that judicial authorities 
be entitled to issue orders 
permitting the right holder to 
obtain relevant information 
concerning the production and 
distribution of infringing 
products; whereas any effective 
fight against product 
counterfeiting makes it necessary 
to provide that this remedy is to 
be available by court order, where 
appropriate, even before final 
judgment in an infringement case. 
17. Unchanged. 
18 Unchanged 
19 
Original proposal 
HAVE ADOPTED THIS 
DIRECTIVE: 
Article 1 
For the purpose of this Directive: 
(a) "design" means the appearance of 
the whole or a part of a product 
resulting from the specific features 
of the lines, contours, colours, 
shape and/or materials of the 
product itself and/or its 
ornamentation; 
(b) "product" means any industrial or 
handicraft item, including parts 
intended to be assembled into a 
complex item, sets or compositions 
of items, packaging, get-ups, 
graphic symbols and typographic 
typefaces, but excluding a 
computer program. 
Article 2 
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) to (c). Amended proposal 
HAVE ADOPTED THIS 
DIRECTIVE: 
Article 1 
Definitions 
For the purpose of this Directive: 
(a) "design" means the outwardly 
visible appearance of the whole or 
a part of a product resulting from 
the features of, in particular, the 
lines, contours, colours, shape, 
texture and/or materials of the 
product itself and/or its 
ornamentation; 
(b) "product" means any industrial or 
handicraft item, including parts 
intended to be assembled into a 
complex product, packaging, get-
up, graphic symbols and 
typographic typefaces, but 
excluding computer programs. 
Article 2 
Scope of application 
This Directive shall apply to: 
(a) Unchanged. 
(b) Unchanged. 
(c) Unchanged. 
(d) Unchanged. 
20 
Original proposal 
Article 3 
1. Member States shall protect the 
designs upon registration, by 
conferring exclusive rights in 
accordance with the provisions of 
the Directive. 
2. A design shall be protected by a 
design right to the extent that it is 
new and has an individual 
character. 
3. A design of a product which 
constitutes a part of a complex 
item shall only be considered to be 
new and to have an individual 
character in so far as the design 
applied to the part as such fulfils 
the requirement as to novelty and 
individual character. Amended proposal 
2. The publication by an industrial 
property office of a Member State 
of a design filed with that office 
shall, for the purpose of this 
Directive, be considered to be a 
registration. 
Article 3 
Protection requirements 
1. Unchanged. 
3. Unchanged. 
A design of a product which 
constitutes a component part of a 
complex product shall only be 
considered to be new and to have 
an individual character: 
(a) if the component part, when 
incorporated into the 
complex product, remains 
visible during normal use of 
the latter, and 
(b) to the extent that the visible 
features of the component 
part fulfil in themselves the 
requirement as to novelty and 
individual character. 
21 
Original proposai 
Article 4 
1. A design shall be considered new 
if no identical design has been 
made available to the public before 
the date of filing the application 
for registration, or if a priority is 
claimed, the date of priority, 
designs shall be deemed to be 
identical if their specific features 
differ only in immaterial details. 
2. A design shall be deemed to have 
been made available to the public 
if it has been published following 
registration or otherwise, exhibited, 
used in trade or otherwise 
disclosed. It shall not, however, be 
deemed to have been made 
available to the public for the sole 
reason that it has been disclosed to 
a third person under explicit or 
implicit conditions of 
confidentiality. Amended proposal 
"Normal use" within the meaning 
of paragraph (3) (a) shall mean use 
by the end user and shall not 
include maintenance, servicing or 
repair. 
Article 4 
Novelty 
A design shall be considered new if no 
identical design has been made 
available to the public before the date 
of filing the application for registration 
or, if priority is claimed, the date of 
priority. Designs shall be deemed to be 
identical if their features differ only in 
immaterial details. 
2. Deleted. 
22 
Original proposal 
Article 5 
1. A design shall be considered to 
have an individual character if the 
overall impression it produces on 
the informed user differs 
significantly from the overall 
impression produced on such a user 
by any design referred to in 
paragraph (2). 
To be considered for the purpose 
of application of paragraph (1) a 
design must be: 
(a) commercialised in the market 
place, whether in the 
Community or elsewhere, at 
the date of filing the 
application for registration or, 
if a priority is claimed, at the 
date of priority, or 
(b) published following 
registration as a registered 
Community design or a design 
right of the Member State in 
question, the protection of 
which has not expired at the 
date of filing the application or 
registration or, if a priority is 
claimed, at the date of priority. 
In order to assess individual 
character, common features shall as 
a matter of principle be given more 
weight than differences and the 
degree of freedom of the designer 
in developing the design shall be 
taken into consideration. Amended proposal 
Article 5 
Individual character 
1. A design shall be considered to 
have an individual character if the 
overall impression it produces on 
the informed user differs from the 
overall impression produced on 
such a user by any design which 
has been made available to the 
public before the date of filing of 
the application for registration, or, 
if priority is claimed, the date of 
priority. 
2. Deleted. 
In order to assess individual 
character, the degree of freedom of 
the designer in developing the 
design shall be taken into 
consideration. 
23 
1. 
2. Original proposal 
Article 6 
If a design for which protection is 
claimed under a registered design 
right of a Member State has been 
made available to the public by the 
designer or his successor in title or 
by a third person as a result of 
information provided or action 
taken by the designer or his 
successor in title or as a 
consequence of an abuse in relation 
to the designer or his successor in 
title during the 12-month period 
preceding the date of the filing of 
the application or, if a priority is 
claimed, the date of priority, such a 
disclosure shall not be taken into 
consideration for the purpose of 
applying Articles 4 and 5. 
The provisions of paragraph (1) 
shall not apply if the subject of the 
abusive disclosure is a design 
which has resulted in a registered 
Community design or a registered 
design right of the Member State 
concerned. Amended proposal 
Article 6 
Disclosure 
1. For the purpose of applying 
Articles 4 and 5, a design shall be 
deemed to have been made 
available to the public if it has 
been published following 
registration or otherwise, or 
exhibited, used in trade or 
otherwise disclosed, except where 
these events could not reasonably 
have become known in the normal 
course of business to the circles 
specialised in the sector concerned, 
operating within the Community 
before the date of filing of the 
application for registration or, if 
priority is claimed, the date of 
priority. 
The design shall not, however, be 
deemed to have been made 
available to the public for the sole 
reason that it has been disclosed to 
a third person under explicit or 
implicit conditions of 
confidentiality. 
2. Disclosure shall not be taken into 
consideration for the purpose of 
applying Articles 4 and 5 if a 
design for which protection is 
claimed under a registered design 
right of a Member State has been 
made available to the public: 
(a) by the designer, his successor 
in title, or a third person as a 
result of information provided 
or action taken by the 
designer, or his successor in 
title; and 
24 
Original proposal 
Article 7 
1. A design right shall not subsist in a 
design to the extent that the 
realisation of a technical function 
leaves no freedom as regards 
arbitrary features of appearance. 
2. A design right shall not subsist in a 
design to the extent that it must 
necessarily be reproduced in its 
exact form and dimensions in order 
to permit the product in which the 
design is incorporated or to which 
it is applied to be mechanically 
assembled or connected with 
another product. Amended proposal 
(b) during the 12-month period 
preceding the date of the filing 
of the application or, if 
priority is claimed, the date of 
priority. 
3. The provisions of paragraph (2) 
shall also apply if the design has 
been made available to the public 
as a consequence of an abuse in 
relation to the designer or his 
successor in title, unless, as a 
result of the abusive conduct, a 
Registered Community Design or a 
registered design right of the 
Member State concerned has come 
into existence. 
Article 7 
Designs dictated by their technical 
function and designs of 
interconnections 
1. A design right shall not subsist in 
features of appearance of a product 
which are solely dictated by its 
technical function. 
2. A design right shall not subsist in 
features of appearance of a product 
which must necessarily be 
reproduced in their exact form and 
dimensions in order to permit the 
product in which the design is 
incorporated or to which it is 
applied to be mechanically 
connected or placed in, around or 
against another product so that 
either product may perform its 
function. 
25 
Original proposal 
3. Notwithstanding paragraph 2, a 
design right shall under the 
conditions set out in Articles 4 
and 5 subsist in a design serving 
the purpose of allowing 
simultaneous and infinite or 
multiple assembly or connection of 
identical or mutually 
interchangeable products within a 
modular system. 
Article 8 
A design right shall not subsist in a 
design the exploitation or publication of 
which is contrary to public policy or to 
the accepted principles of morality. 
Article 9 
1. The scope of the protection 
conferred by a design right shall 
include any design which produces 
on the informed user a significantly 
similar overall impression. 
2. In order to assess the scope of 
protection, common features shall 
as a matter of principle be given 
more weight than differences and 
the degree of freedom of the 
designer in developing his design 
shall be taken into consideration. Amended proposal 
3. Unchanged. 
Article 8 
Designs contrary to public policy or 
morality 
A design right shall not subsist in a 
design which is contrary to public 
policy or to the accepted principles of 
morality. 
Article 9 
Scope of Protection 
1. The scope of the protection 
conferred by a design right shall 
include any design which does not 
produce on the informed user a 
different overall impression. 
2. In order to assess the scope of 
protection, the degree of freedom 
of the designer in developing his 
design shall be taken into 
consideration. 
26 
Original proposal 
Article 10 
Upon registration a design which meets 
the requirements under Article 3(2) 
shall be protected by a design right for 
a period of five years from the date of 
filing the application. The term of 
protection may be renewed for periods 
of five years each, up to a total term 
of 25 years from the date of filing. 
Article 11 
1. A design is excluded from 
registration, or if registered may be 
declared invalid, only in the 
following cases: 
(a) if the design does not fulfil 
the requirements under 
Article 3(2), or 
(b) where its specific technical 
and/or interconnecting features 
are not eligible for protection 
under Article 7(1) or (2), or 
(c) to the extent that its 
exploitation or publication is 
contrary to public policy or to 
accepted principles or morality, 
or 
(d) if the applicant for or the 
holder of the design right is 
not entitled to it under the law 
of the Member State 
concerned. Amended proposal 
Article 10 
Term of protection 
Unchanged. 
Article 11 
Invalidity or refusal of registration 
1. A design may only be refused 
registration, or, if registered, 
declared invalid, in the following 
cases: 
(a) if it is not a design within the 
meaning of Article 1, or if it 
does not fulfil the 
requirements under Article 3, 
or 
(b) if its technical and/or 
interconnecting features are 
not eligible for protection 
under Article 7(1) or (2), or 
(c) if it is contrary to public 
policy or to accepted 
principles of morality, or 
(d) if the applicant for or the 
holder of the design right is 
not entitled to it under the law 
of the Member State 
concerned, or 
27 
Original proposal Amended proposal 
(e) if a distinctive sign is used in 
a subsequent design, and 
Community law or the law of 
the Member State governing 
that sign confers on the right 
holder of the sign the right to 
prohibit such use, or 
(f) if the design constitutes an 
unauthorised use of a work 
protected under the copyright 
law of the Member State 
concerned, or 
(g) if the design constitutes an 
improper use of any of the 
items listed in Article 6ter of 
the Paris Convention for the 
Protection of Industrial 
Property, or of badges, 
emblems and escutcheons 
other than those covered by 
Article 6,erof the said 
Convention and which are of 
particular public interest in the 
Member State concerned, or 
(h) if a conflicting design which 
has been made available to the 
public after the date of the 
filing of the application or, if 
priority is claimed, the date of 
priority, is protected from a 
date prior to the said date by a 
registered Community design 
or a design right of the 
Member State concerned, or 
by an application for such a 
right. 
28 
Original proposal 
2. A design right may also be 
declared invalid if a conflicting 
design which has been made 
available to the public after the 
date of the filing of the application 
or, if a priority is claimed, the date 
of priority, is protected from a date 
prior to the said date by a 
registered Community design or a 
design right of the Member State 
concerned, or by an application for 
such a right. 
3. Any Member State may provide 
that, by way of derogation from the 
preceding paragraphs, the grounds 
for refusal of registration or for 
invalidation in force in that State 
prior to the date on which the 
provisions necessary to comply 
with this Directive enter into force, 
shall apply to design rights for 
which application has been made 
prior to that date. Amended proposal 
2. If the ground for invalidity or for 
refusal of registration applies only 
to some of the features of the 
design, it may be registered or 
maintained in an amended form. 
3. Unchanged. 
4. A design right may be declared 
invalid even after it has lapsed or 
has been surrendered. 
29 
Original proposal 
Article 12 
1. Upon registration a design right 
shall confer on its holder the 
exclusive right to use the design 
and to prevent any third party not 
having his consent from using a 
design included within the scope of 
protection of the design right. The 
aforementioned use shall cover, in 
particular, the making, offering, 
putting on the market or using of a 
product in which such a design is 
incorporated or to which it is 
applied, or from importing, 
exporting or stocking such a 
product for those purposes. 
Where, under the law of a 
Member State, acts referred to in 
paragraph 1 could not be prohibited 
before the date on which the 
provisions necessary to comply 
with this Directive entered into 
force, the rights conferred by the 
design right may not be relied on 
to prevent continuation of such 
acts. 
Article 13 
1. The rights conferred by a design 
right upon registration shall not 
extend to: 
(a) acts done privately and for 
non-commercial purposes; 
(b) acts done for experimental 
purposes; Amended proposal 
Article 12 
Rights conferred 
by the design right 
Upon registration, a design right 
shall confer on its holder the 
exclusive right to use the design 
and to prevent any third party not 
having his consent from copying it, 
or from using a design included 
within the scope of protection of 
the design right. The 
aforementioned use shall cover, in 
particular, the making, offering, 
putting on the market or using of a 
product in which such a design is 
incorporated or to which it is 
applied, or, importing, exporting or 
stocking such a product for those 
purposes. 
Unchanged. 
Article 13 
Limitation of the rights 
conferred by the design right 
1 Unchanged. 
(a) Unchanged. 
(b) Unchanged. 
30 
Original proposai 
(c) acts of reproduction for the 
purposes of making citations 
or of teaching, provided that 
such acts are compatible with 
fair trade practice and do not 
unduly prejudice the normal 
exploitation of the design, and 
that mention is made of the 
source. 
2. In addition, the rights conferred by 
a design right upon registration 
shall not extend to: 
(a) the equipment on ships and 
aircraft registered in another 
country when these 
temporarily enter the territory 
of the Member State 
concerned; 
(b) the importation in the Member 
State concerned of spare parts 
and accessories for the purpose 
of repairing such craft; 
(c) the execution of repairs on 
such craft. 
Article 14 
The rights conferred by a design right 
shall not be exercised against third 
parties who, after three years from the 
first putting on the market of a product 
incorporating the design or to which the 
design is applied, use the design under 
Article 12, provided that: Amended proposal 
(c) Unchanged. 
2. Unchanged. 
Article 14 
Use of a design for repair purposes 
1 By way of derogation from 
Article 12, the rights conferred by 
a design right shall not be 
exercised against third parties who 
use the design, provided that: 
31 
Original proposal 
(a) the product incorporating the 
design or to which the design is 
applied is a part of a complex 
product upon whose appearance the 
protected design is dependent; 
(b) the purpose of such a use is to 
permit the repair of the complex 
product so as to restore its original 
appearance; and 
(c) the public is not misled as to the 
origin of the product used for the 
repair. Amended proposal 
(a) the product incorporating the 
design or to which the design 
is applied is a component part 
of a complex product upon 
whose appearance the 
protected design is dependent; 
and 
(b) the purpose of such a use is to 
permit the repair of the 
complex product so as to 
restore its original appearance; 
and 
(c) the public is informed as to 
the origin of the product used 
for the repair by the use of an 
indelible marking, such as a 
trademark or a trade name, or 
in another appropriate form; 
and 
(d) the third party has: 
(i) notified the right holder 
of the intended use of the 
design; 
(ii) offered the right holder a 
fair and reasonable 
remuneration for that use; 
and 
(iii) offered to provide the 
right holder in a regular 
and reliable manner with 
information as to the 
scale of the use made of 
the design under this 
provision. 
32 
Original proposal Amended proposal 
2. Save as otherwise agreed, the 
obligations mentioned in 
paragraph 1(d) shall be incurred by 
the manufacturer or, in the case of 
the import of a component part not 
manufactured in the Member State 
where the protection applies, by 
the importer of the component part 
into which the design is to be 
incorporated or to which it is to be 
applied. 
3. In calculating the remuneration, the 
investment made in development 
of the relevant design shall be the 
primary basis for consideration. 
4. Paragraph 1 shall not apply if the 
right holder provides evidence to 
sustain a claim that the party upon 
whom the obligations under 
paragraph 1(d) are incumbent is 
unable or unwilling to comply with 
them or to pay the remuneration 
offered by him. 
5. No later than five years after the 
implementation date specified in 
Article 19, the Commission shall 
submit an analysis of the 
consequences of the provisions of 
this Article for the Community 
industrial sectors most affected, 
and in particular for manufacturers 
of complex products such as motor 
vehicles and producers of spare 
parts. If necessary, it shall propose 
to the European Parliament and the 
Council changes to this Article, 
after consulting the 
abovementioned sectors. 
33 
Original proposal 
Article 15 
The rights conferred by a design right 
upon registration shall not extend to 
acts relating to a product in which a 
design included within the scope of 
protection of the design right is 
incorporated or to which it is applied, 
when the product has been put on the 
market in the Community by the holder 
of the design right or with his consent. 
Article 16 
A design right may be declared invalid 
even after it has lapsed or has been 
surrendered. Amended proposal 
Article 15 
Exhaustion 
The rights conferred by a design right 
upon registration shall not extend to 
acts relating to a product in which a 
design included within the scope of 
protection of the design right is 
incorporated or to which it is applied, 
when the product has been put on the 
market in the Community by the holder 
of the design right, with his consent, or 
in accordance with the provisions of 
Article 14. 
Article 16 
Deleted. 
Article 16a 
Right to information 
1. The Court having jurisdiction to 
hear an action for infringement of 
a design right or to grant a request 
for interlocutory measures shall, at 
the request of the right holder and 
unless there are special reasons for 
not doing so, order a person to 
supply that right holder with 
information as to the origin and the 
route for the commercial 
distribution of goods allegedly 
infringing the design right, if the 
person in question: 
(a) has been found in possession, 
for commercial purposes, of 
such goods, or 
34 
Original proposal Amended proposal 
(b) has been identified by a person 
under (a) as being the origin 
or a link in the route for the 
commercial distribution of 
such goods. 
2. The information referred to under 
paragraph 1 shall comprise. 
(a) the names and addresses of 
producers, suppliers and other 
prior possessors of the product 
and of commercial recipients 
or outlets, as well as 
(b) information on the quantity of 
goods which have been 
produced, delivered, received 
or commissioned. 
3. Paragraphs 1 and 2 shall be 
without prejudice to other 
provisions: 
(a) granting the right holder more 
far reaching rights to 
information; 
(b) governing the use of 
information provided under 
this Article, in penal or civil 
procedures; 
(c) governing liability for the 
abuse of a right to 
information; or 
(d) affording the possibility of 
refusing to provide information 
that would force the person 
referred to in paragraph 1 to 
admit the existence of an 
infringement. 
35 
Original proposal 
Article 17 
The provisions of this Directive shall 
be without prejudice to any legal 
provisions of the Community or of the 
Member State concerned relating to 
unregistered design rights, trademarks 
or other distinctive signs, patents and 
utility models, typefaces, civil liability, 
or unfair competition. 
Article 18 
Pending further harmonisation of 
the laws of copyright of the 
Member States, a design protected 
by a design right registered in or 
for a Member State in accordance 
with this Directive shall also be 
eligible for protection under the 
law of copyright of that State as 
from the date on which the design 
was created or fixed in any form, 
irrespective of the number of 
products in which such design is 
intended to be incorporated or to 
which it is intended to be applied 
and irrespective of whether the 
design can be dissociated from the 
products in which it is intended to 
be incorporated or to which it is 
intended to be applied. The extent 
to which, and the conditions under 
which, such a protection is 
conferred, including the level of 
originality required, shall be 
determined by each Member State. Amended proposal 
Article 17 
Relationship to other forms of 
protection 
The provisions of this Directive shall 
be without prejudice to any provisions 
of Community law or of the law of the 
Member State concerned relating to 
unregistered design rights, trademarks 
or other distinctive signs, patents and 
utility models, typefaces, civil liability, 
or unfair competition. 
Article 18 
Relationship to copyright 
A design protected by a design right 
registered in, or in respect of, a 
Member State in accordance with this 
Directive shall also be eligible for 
protection under the law of copyright 
of that State as from the date on which 
the design was created or fixed in any 
form. The extent to which, and the 
conditions under which, such a 
protection is conferred, including the 
level of originality required, shall be 
determined by each Member State. 
36 
2. Original proposal 
Pending further harmonisation of 
the laws of copyright of the 
Member States, each Member State 
shall admit to the protection under 
its law of copyright a design 
protected by a design right 
registered in or for this State which 
fulfils the conditions required 
under such law, even if, in another 
Member State which is the country 
of origin of the design, the latter 
does not fulfil the conditions for 
protection under the law of 
copyright in that State. 
Article 19 
Member States shall bring into 
force the laws, regulations or 
administrative provisions necessary 
to comply with this Directive 
by 31 October 1996. 
When Member States adopt these 
measures, these shall contain a 
reference to the Directive or shall 
be accompanied by such reference 
at the time of their official 
publication. The procedure for such 
reference shall be adopted by 
Member States. 
Member States shall communicate 
to the Commission the provisions 
of national law which they adopt in 
the field governed by this 
Directive. Amended proposal 
Deleted. 
Article 19 
Implementation 
1. Member States shall bring into 
force the laws, regulations or 
administrative provisions necessary 
to comply with this Directive 
by 1 January 1998. 
When Member States adopt these 
provisions, these shall contain a 
reference to this Directive or shall 
be accompanied by such reference 
at the time of their official 
publication. The procedure for 
such reference shall be adopted by 
Member States. 
2. Unchanged. 
37 
Original proposal 
Article 20 
This Directive is addressed to the 
Member States. Amended proposal 
Article 20 
Entry into force 
This Directive shall enter into force on 
the twentieth day following that of its 
publication in the Official Journal of 
the European Communities. 
Article 21 
Addressees 
This Directive is addressed to the 
Member States. 
Done at Brussels, 
For the European Parliament 
The President For the Council 
The President 
38 
ISSN 0254-1475 
COM(96) 66 final 
DOCUMENTS 
EN 08 
Catalogue number : CB-CO-96-079-EN-C 
ISBN 92-78-00777-3 
Office for Official Publications of the European Communities 
L-2985 Luxembourg 
39