EUROPEAN COMMISSION Brussels, 28.11.2022 COM(2022) 666 final 2022/0391(COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Regulation (EC) No 6/2002 on Community designs and repealing Commission Regulation (EC) No 2246/2002 (Text with EEA relevance) {SEC(2022) 422 final} - {SWD(2022) 367 final} - {SWD(2022) 368 final} - {SWD(2022) 369 final}



EXPLANATORY MEMORANDUM 1.CONTEXT OF THE PROPOSAL •Reasons for and objectives of the proposal Industrial design rights protect the appearance of a product. Industrial design is what makes a product appealing. Visual appeal is one of the key factors that influence consumers' choice of preferring one product to another. Well-designed products create an important competitive advantage for producers. To encourage innovation and the creation of new product design in the digital age, there is an increasing need for accessible, future-proofed, effective and consistent legal protection of design rights. The industrial design protection system in Europe is more than twenty years old. The laws of the Member States relating to industrial designs were partially aligned by Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 (‘the Directive’). Alongside the national design protection systems, Council Regulation (EC) No 6/2002 of 12 December 2001 (‘the Regulation’) established a stand-alone system for protecting unitary rights that have equal effect throughout the EU in form of the registered Community design (‘RCD’) and the unregistered Community design. It is only once that the Regulation was amended in 2006 to give effect to the EU joining the international Hague registration system. In addition, a transitional legal regime still exists in relation to design protection for repair spare parts. As no agreement could be reached on that point, the Directive includes a ‘freeze-plus clause’, under which Member States may retain their existing laws on whether spare parts should benefit from protection until amendments to the Directive are adopted on a proposal from the Commission. For that reason, Regulation (EC) No 6/2002 exempts repair spare parts from Community design protection until the Council has decided its policy on this issue on the basis of a Commission proposal. A proposal presented by the Commission in 2004 to align design protection for visible spare parts by introducing a ‘repair clause’ into the Directive (as already contained in the Regulation), did not receive sufficient support in the Council, despite overwhelming support by the European Parliament, and was withdrawn in 2014. In line with the Commission’s Better Regulation agenda to review EU policies regularly, in 2014 the Commission launched an evaluation of the operation of the design protection systems in the EU, involving a comprehensive economic and legal assessment, supported by a series of studies. On 11 November 2020, the Council of the European Union adopted conclusions on intellectual property policy and the revision of the industrial designs system in the EU. The Council called on the Commission to present proposals for revising the EU’s designs legislation, with a view to modernising the design protection systems and making design protection more attractive for individual designers and businesses, especially small and medium-sized enterprises (SMEs). Based on the final results of the evaluation, the Commission announced in its communication of 25 November 2020 entitled ‘Making the most of the EU’s innovative potential – An intellectual property action plan to support the EU’s recovery and resilience’ that it will revise the EU legislation on design protection, following the successful reform of the EU trade mark legislation. On 25 June 2021, the Council adopted further conclusions on intellectual property policy, urging the Commission to prioritise the timely presentation of a proposal as soon as possible on revising and modernising the legislation on industrial designs. Furthermore, in its supportive Opinion on the IP Action Plan, the European Parliament stressed the need for revising the design protection system since it had been established 20 years ago. Considered together as a package within the Regulatory Fitness Programme (REFIT), the main common objective of this initiative and of the parallel proposal for recasting the Directive is to promote design excellence, innovation and competitiveness in the EU. This is to be done by ensuring that the overall design protection system is fit for purpose in the digital age and becomes substantially more accessible and efficient for individual designers, SMEs and design intensive industries in terms of lower costs and complexity, increased speed, greater predictability and legal certainty. Specifically, the present initiative to amend the Regulation is driven by the following objectives: –Modernising and improving existing provisions, by amending outdated provisions, increasing legal certainty and clarifying rights in terms of scope and limitations; –Improving the accessibility, efficiency and affordability of RCD protection, by simplifying and streamlining procedures, and adjusting and optimising the level and structure of payable fees. •Consistency with existing legislative provisions in this field This proposal is to amend Council Regulation (EC) No 6/2002. Together with the parallel proposal for recasting Directive 98/71/EC, this proposal forms a coherent package in implementing the IP Action Plan and with the purpose of modernising and further aligning the current EU legislation on design protection. This proposal is also consistent with Regulation (EU) 2017/1001 of the European Parliament and of the Council on the European Union trade mark. This is, for example, the case with regard to the scope of design rights which, like the scope of EU trade marks, is extended to cover counterfeit goods in transit and other customs situations. It is also true for certain provisions on procedures which at present only form part of the EU trade mark regime and are proposed to be inserted into the revision of Regulation (EC) No 6/2002, such as those regarding the continuation of proceedings or the revocation of decisions (see also below under alignment with EU trade mark proceedings). Furthermore, for the sake of consistency, it is proposed to confer the same delegated and implementing powers to the Commission as was done in Regulation (EU) 2017/1001. •Consistency with other EU policies Because this proposal plans to convert the transitional repair clause, currently in Article 110 of Regulation (EC) No 6/2002, into a permanent provision to be found in the proposed new Article 20a of that Regulation, in line with the insertion of a repair clause into the Directive, the proposal is consistent with and complementary to Regulation (EU) 461/2010 (the Motor Vehicle Block Exemption Regulation or ‘MVBER’) in the field of antitrust policy.

The proposal to maintain that repair clause in Regulation (EC) No 6/2002 is also consistent with and complements efforts put forward in the Sustainable Product Initiative that aims to promote repairs and the circular economy. 2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY •Legal basis The proposal is based on Article 118(1) TFEU empowering the European Parliament and the Council to establish measures to create European intellectual property rights throughout the EU, including setting up centralised EU-wide authorisation, coordination and supervision arrangements. This is a change from the legal base applied to Regulation (EC) No 6/2002, which, like the first Community Trade Mark Regulation (Regulation 40/94 on the Community trade mark), was based on Article 308 of the EC Treaty. Article 118 was introduced by the Treaty on the Functioning of the European Union (TFEU) and now provides an express legal base for EU-wide intellectual property rights. It is also now the legal basis for Regulation (EU) 2017/1001 of the European Parliament and of the Council on the European Union trade mark. •Subsidiarity (for non-exclusive competence) Article 118(1) TFEU can only be applied to create European intellectual property titles. The Union design system is an autonomous regime created by an EU Regulation and applies independently of any national system. The EUIPO (formerly OHIM) is a regulatory agency with legal, administrative and financial autonomy, which was created by the Council to manage the registration system for the RCD and Community trade mark (now the EU trade mark). As was the case with the changes introduced to the trade marks regime under Regulation (EU) 2017/1001, the analysis carried out in the impact assessment to this initiative proved that certain provisions in Regulation (EC) No 6/2002 need to be amended, in particular to improve and streamline the registration system for the RCD. •Proportionality The proposal has been designed to reduce the administrative burden and compliance costs for businesses and individual designers using the Community design system and for the EUIPO. The proposal involves targeted amendments to the self-standing Regulation (EC) No 6/2002 and does not go beyond what is necessary to achieve the identified objectives. •Choice of instrument The objectives of this proposal can only be achieved by a legislative act that will amend the existing substantive and procedural provisions governing the Community design, which is in the form of a regulation. Therefore, a regulation amending Regulation (EC) No 6/2002 is required. 3.RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS •Ex-post evaluations/fitness checks of existing legislation The Commission carried out an overall evaluation of the current Directive and Regulation, which was published in November 2020. It concluded that the EU legislation on design protection had met the objectives and was still largely fit for purpose. However, with respect to Regulation (EC) No 6/2002, the evaluation identified certain shortcomings. In particular, the procedures for registering RCDs are partly outdated or involve unnecessary administrative burden, and the level and structure of payable fees are sub-optimal. Based on the findings of the evaluation, the European Commission conducted an impact assessment and thereafter decided to revise the legislation. The various steps in the impact assessment, from defining problems and their causes to identifying objectives and possible policy options, relied on the findings of the evaluation report. •Stakeholder consultations A comprehensive first public consultation was conducted between 18 December 2018 and 30 April 2019 with the aim of (i) gathering sufficient stakeholder evidence and views to support the evaluation of the EU designs legislation and (ii) establishing the degree to which that legislation works as intended and can still be considered fit for purpose.

Almost two thirds of respondents considered that the industrial design protection system in the EU (national design system under the Directive and the Community design regime altogether) works well. At the same time, almost half of the respondents pointed at unintended consequences or shortcomings in the Regulation and/or the Directive. As a complement to the extensive consultation for the evaluation, the Commission carried out a second public consultation between 29 April and 22 July 2021 to obtain additional stakeholder evidence and views on selected issues and potential options and their impacts, to support the review of the legislation on designs. •Collection and use of expertise The impact assessment on the revision of Regulation (EC) No 6/2002 and Directive 98/71/EC relied in particular on two external studies, considering both economic and legal aspects of the functioning of the design protection systems in the EU. In addition, as for the issue of spare parts protection specifically, the impact assessment was supported by two further studies on the effect that protection has on price and price dispersion and on the market structure of motor vehicle spare parts in the EU. Further information in support of the impact assessment was drawn from close collaboration with the EUIPO and several other studies and reports it had prepared, as well as other available studies and data collections prepared by national and international public authorities, including national IP offices, academics and other stakeholders. • Impact assessment As this proposal is presented in a package alongside the proposal to revise Directive 98/71/EC, the Commission conducted a joint impact assessment for both it and the parallel proposal to recast Directive 98/71/EC. This impact assessment was submitted to the Regulatory Scrutiny Board on 27 October and was given a positive opinion by the Board on 26 November 2021. The final impact assessment takes into account comments contained in that opinion. In the impact assessment the Commission considered two main problems: 1. The disruption in intra-EU trade and barriers to competition in some Member States with regard to repair spare parts. 2. The discouragement of businesses, in particular SMEs and individual designers from seeking registered design protection at EU or national level - due to the high costs, burdens and delays in obtaining protection and the limited predictability around it. While the spare parts issue (first problem) and the issue of divergent (procedural) provisions as part of the second problem are due to be addressed in the parallel revision of the Directive, the partly outdated procedures for registering Community designs and sub-optimal fees to be paid for registered Community designs must be dealt with in the revision of Regulation (EC) 6/2002. The following sole (straightforward) option was considered for resolving the problem of complex procedures for registering RCDs and tackling the objective of making protection more accessible and efficient: Option 2: Simplification and streamlining of RCD procedures (including through alignment with the EU trade mark reform). This option involves in particular updating the requirements for representing designs, deleting the ‘unity of class’ requirement for multiple design applications, and aligning RCD proceedings with EU trade mark proceedings. The following option with sub-options was considered for resolving the problem of sub-optimal RCD fees and tackling the objective of making RCD protection more affordable: Option 3: Lower RCD registration fee and easier multiple applications. This option requires the removal of the ‘unity of class’ requirement for multiple applications and the adjustment of payable fee amounts. To ensure equal treatment of applicants with smaller and larger filing volumes, adjusting the payable fee amounts also involves introducing a flat fee per additional design and thus abolishing bulk discounts granted at different levels dependent on the number of designs contained in a multiple application. To counterbalance these benefits at filing stage, the above measure is coupled with an increase in subsequent renewal fees. This model allows easier access to RCD protection, in particular for SMEs (cheaper acquisition of the right and first renewal), while at the same time ensuring that only those RCDs utilised in the market place remain on the register, by progressively increasing subsequent renewal fees for second, third and fourth renewals. In both sub-options 3.1 and 3.2, the headline fee for obtaining a single RCD would be reduced from EUR 350 to EUR 250. And then for each additional design forming part of a multiple application, the fee would be EUR 125 under sub-option 3.1, and EUR 100 under sub-option 3.2. The fees for renewals under sub-option 3.1 are as follows: - first renewal – EUR 70; - second renewal – EUR 140;

- third renewal – EUR 280; - fourth renewal EUR 560. For this sub-option, the sum of fees for the first two renewals are equivalent to those under the current fee level, that is EUR 210 in total. In contrast, under sub-option 3.2 all renewal fees would be higher than under the current system. The adjustment of fees would in any case be coupled with a simplification of the fee structure by abolishing the publication fee and adding this fee to the registration fee. To align RCD rules with those for the EU trade mark, the transfer fee for RCDs would be abolished. The benefits of the fee reduction would primarily go to users of the RCD system. Businesses would get more value for money and would not pay more for the EUIPO services than is strictly necessary. This would enable SMEs and individual designers in particular to limit their costs and to compete with larger firms under more advantageous conditions. This would benefit consumers and, ultimately, society as a whole. To make RCD protection more accessible and affordable for businesses and keep abreast of technological advancement, Option 2 on simplification and streamlining of procedures combined with Sub-option 3.1 on fees (which does not entail an excessive, disproportionate increase in renewal fees compared to Sup-option 3.2), promises to generate positive impacts and clear benefits for businesses, in particular SMEs and individual designers. •Regulatory fitness and simplification This proposal and the parallel proposal for recasting Directive 98/71/EC was included in Annex II of the 2022 Commission work programme - therefore they are part of the regulatory fitness programme (REFIT). This proposal aims to align the RCD protection system in the EU with the digital age and make it more accessible and efficient for applicants. In terms of digitalisation, the proposed update of the requirements for representing designs would allow applicants to reproduce their designs in a clear and precise manner using generally available technology. This would facilitate in particular the filing of new digital design types. The detailed overhaul of the representation requirements (which is to follow under the required new secondary legislation to be enacted) would be greatly beneficial for both applying businesses and the EUIPO, as it would significantly reduce the potential for deficiencies and increase legal certainty. In terms of simplification, the proposed abandonment of the ‘unit-of-class’ requirement would allow businesses to file (more) multiple design applications by combining several designs in one application without being restricted to products of the same nature. In addition, the proposed adjustment and simplification of the RCD fee schedule would reduce administrative burdens (in particular by abolishing the publication fee and introducing a flat fee per additional design filed within a multiple application) and make registration easier and more transparent for RCD applicants. Relevant cost savings are specified and summarised in Table 8.1 of the impact assessment. • Fundamental rights The initiative would improve the possibilities for designers to protect their rights, bringing a positive impact on fundamental rights such as the right to property and the right to an effective remedy. To make the design protection system in the EU more balanced, it also aims to provide for a more robust catalogue of limitations on design rights, taking account of fairness- and competition-based considerations. 4. BUDGETARY IMPLICATIONS This proposal would not have an impact on the European Union budget and is therefore not accompanied by the financial statement provided for under Article 35 of the Financial Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union and repealing Regulation (EU, Euratom) No 966/2012. 5.OTHER ELEMENTS •Implementation plans and monitoring, evaluation and reporting arrangements The Commission will use EUIPO annual reports and statistics to monitor in particular the evolution of design filings at the EUIPO, the usage of design protection by SMEs (based on future statistical disaggregation) and changes in (i) the number of multiple applications (ii) the number of designs with renewed protection and (iii) the number of renewals.

The monitoring activities would take into account the required implementation period (including to enact the necessary new secondary legislation based on the delegated and implementing powers to be conferred to the Commission) as well as sufficient time for market participants to adapt to the new situation. A set of pertinent indicators as referred to in Section 9 of the impact assessment would be considered for evaluating the changes. Such evaluation would be done five years after full implementation of all the required changes, including at the level of secondary legislation to supplement and implement the provisions of Regulation (EC) No 6/2002. •Detailed explanation of the specific provisions in the proposal - Update of terminology and provisions on EUIPO governance For the sake of consistency, and following the entry into force of the Lisbon Treaty, the use of the term “Community” is obsolete. Therefore, the terminology used in Regulation (EC) No 6/2002 is aligned to both the Lisbon Treaty and Regulation (EU) 2017/1001 on the EU trade mark. Henceforth, registered Community designs or RCDs will be known as registered EU designs (REUDs). - Provisions on EUIPO governance (Title XI) As the main provisions on governance of the EUIPO were amended in Regulation (EU) 2017/1001, the supplementary provisions contained in Regulation (EC) No 6/2002 are adapted accordingly. - Definition of design and product (Article 3) The definitions are updated, clarified and broadened with the purpose of (i) making the proposal for a Regulation future-proof in the light of technological advancement and (ii) providing greater legal certainty and transparency as to the eligible subject matter of design protection. In particular, in response to the advent of new technological designs which are not embodied in physical products, it is proposed to update and broaden the product notion so as to better cover and distinguish those products visualised in a graphic, embodied in a physical object or apparent from the spatial arrangement of items to form an interior environment. - Object of protection (Article 18a) For greater legal certainty in relation to the ‘visibility requirement’, a specific provision is proposed to be added whereby design protection is conferred only on those features of appearance, which are shown visibly in the application for registration. - Scope of rights conferred by a registered design (Article 19) To enable design right holders to more effectively address the challenges brought by the increased deployment of 3D printing technologies, it is proposed to adjust the scope of design rights accordingly. In addition, following the EU trade mark reform, it is considered important for the effective fight against ever increasing counterfeiting activities to also add to the legal framework on RCDs a corresponding provision, permitting right holders to prevent counterfeit products transiting through EU territory or being placed in another customs situation without being released for free circulation there. - Limitation of the rights conferred (Article 20) To ensure a better balance of legitimate interests involved and taking account of the case law of the Court of Justice of the European Union (CJEU), it is proposed to complement the list of permissible uses by adding ‘referential use’ and ‘critique and parody’. - Repair clause (Article 20a) In line with the insertion of a repair clause into the Directive, the transitional repair clause currently contained in Article 110 of Regulation (EC) No 6/2002 is proposed to be converted into a permanent provision. For the sake of consistency with the repair clause inserted into the Directive and in view of the case law of the CJEU, it is proposed to explicitly restrict the scope of application of the repair clause to component parts whose appearance is dependent on the appearance of the complex product concerned.

In addition, it should be made explicit that the repair clause can be used as a defence against infringement claims only if consumers are duly informed of the origin of the product to be used for repairing the complex product. - Design notice (Article 26a) A design notice is made available to holders of registered EU designs, permitting them to inform the public that the design has been registered. - Principle of cumulation (Article 96(2)) The principle of cumulation of design and copyright protection is maintained, while taking account of the fact that, since the original legislation was adopted, harmonisation has progressed in the copyright area. - Requirements of design representation (Articles 36 and 36a) The proposed amendment to Article 36(1)(c) of Regulation (EC) No 6/2002 intends to ensure that the representation of the design allows all the details of the subject-matter for which protection is sought to be clearly distinguished and published, regardless of the means of representation used. Given the negligible number of specimens filed, it is further proposed to abolish the option of filing a specimen instead of a representation of the design. The aim of the proposed new Article 36a is to empower the Commission to specify the details to be contained in the application for a registered EU design, including the updating of the standards of design representation to be fit for the digital age (see also above under regulatory fitness and simplification). - Multiple applications (Article 37) It is proposed to abolish the so-called ‘unity of class’ requirement so that applicants are able to combine several designs in one multiple application without being limited to products of the same Locarno Class and with the possibility of benefiting from a bulk discount. - Alignment with EU trade mark proceedings Several amendments are proposed to make RCD proceedings more efficient while ensuring consistency with the EU trade mark regime. Such amendments include (i) the abandonment of the option to file an RCD application through one of the central industrial property offices of the Member States or the Benelux IP Office, (ii) the introduction of the option to apply for the continuation of proceedings or the revocation of a decision by the EUIPO, and (iii) the extension of the rules on professional representation to cover the whole European Economic Area. - Payable fees (Annex I) Given the essential importance of the amounts of RCD fees for the overall functioning of the design protection system in the EU and its complementary relationship as regards national design protection systems, and for the sake of consistency with Regulation (EU) 2017/1001 on the EU trade mark, both the amounts of RCD fees and the rules on payment currently laid down in Commission Regulation (EC) No 2246/2002 (the Fees Regulation) are proposed to be integrated into Regulation (EC) No 6/2002. The Fees Regulation will therefore become obsolete and is proposed to be repealed. Compared to the amount of RCD fees currently set out in the Fees Regulation, it is further proposed to reduce the level of the application fee, which together with the abolition of the ‘unity of class’ requirement for multiple applications, shall make access to registered EU design protection more affordable, in particular, for SMEs and individual designers, which tend to file fewer design applications than larger firms. In addition, it is proposed to simplify the schedule of RCD fees (such as by merging the registration fee with the publication fee to become a single application fee) to further increase the accessibility, transparency and user-friendliness of the system for companies and designers applying for registered EU design protection. - Alignment with Articles 290 and 291 TFEU The Regulation confers powers on the Commission to adopt certain rules. Those rules are currently provided in (i) Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Council Regulation (EC) No 6/2002 on Community designs and (ii) Commission Regulation (EC) No 2246/2002 of 16 December 2002 on the fees payable to the Office for Harmonisation in the Internal Market. As this has not been done yet, it is necessary to align the powers conferred on the Commission under the Regulation with Articles 290 and 291 TFEU. The proposal therefore intends to insert a number of specific new empowerments for the Commission to adopt delegated and implementing acts. 2022/0391 (COD)

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Regulation (EC) No 6/2002 on Community designs and repealing Commission Regulation (EC) No 2246/2002 (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 118, first paragraph, thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee, Having regard to the opinion of the Committee of the Regions, Acting in accordance with the ordinary legislative procedure, Whereas: (1)Council Regulation (EC) No 6/2002 created a system of design protection specific to the European Union which provided for the protection of designs at Union level in parallel to the protection of designs available at national level in the Member States in accordance with the respective national design protection laws, harmonised by Directive 98/71/EC of the European Parliament and of the Council. (2)In line with its Communication on Better Regulation and its commitment to review Union policies regularly, the Commission carried out an extensive evaluation of the design protection systems in the Union, involving a comprehensive economic and legal assessment, supported by a series of studies. (3)In its conclusions of 11 November 2020 on intellectual property policy and the revision of the industrial design system in the Union, the Council called on the Commission to present proposals for the revision of Regulation (EC) No 6/2002 and Directive 98/71/EC. The purpose of that revision should be to modernise the protection systems relating to industrial designs in the Union and to make design protection more attractive for individual designers and businesses, especially small and medium-sized enterprises (SMEs). (4)Since the establishment of the Community design system, experience has shown that individual designers and undertakings from within the Union and from third countries have accepted the system which has become a successful and viable complement or alternative to the protection of designs at the national level of the Member States. (5)National design protection systems continue nevertheless to be necessary for those individual designers and undertakings that do not want protection of their designs at Union level, or that are unable to obtain Union-wide protection while national protection does not face any obstacles. It should be left to each person seeking design protection to decide whether the protection is sought only as a national design in one or more Member States, or only as an EU design, or both. (6)While the Commission’s evaluation of the Union’s legislation on design protection confirmed that it is still largely fit for purpose, it announced in its communication ‘Making the most of the EU’s innovative potential – An intellectual property action plan to support the EU’s recovery and resilience’ of 25 November 2020 that following the successful reform of the EU trade mark legislation, among others, it will revise the Union legislation on design protection with a view to improving the accessibility and affordability of design protection in the Union. (7)In parallel with the improvements and amendments to the EU design system, national design laws and practices should be further harmonised and brought into line with the EU design system to the extent appropriate in order to create, as far as possible, equal conditions for the registration and protection of designs throughout the Union. This should be complemented by further efforts of the European Union Intellectual Property Office (EUIPO, ‘the Office’), the central industrial property offices of the Member States and the Benelux Office for Intellectual Property to promote convergence of practices and tools in the field of designs under the cooperation framework laid down in Article 152 of Regulation (EU) 2017/1001 of the European Parliament and of the Council. (8)It is necessary to update the terminology of Regulation (EC) No 6/2002 to conform with the Lisbon Treaty. This entails the replacement of ‘Community design’ by ‘European Union design’ (‘EU design’). In addition, the terminology needs to be aligned with that of Regulation (EU) 2017/1001. This involves in particular the replacement of the name ‘Office for Harmonization in the Internal Market (trade marks and designs)’ by ‘European Union Intellectual Property Office’.

(9)Since the establishment of the Community design system, the rise of information technology entailed the advent of new designs which are not embodied in physical products. That calls for a broadening of the definition of products eligible for design protection to clearly cover those visualised in a graphic, embodied in a physical object or apparent from the spatial arrangement of items intended to form, in particular, an interior environment. In this context, it should also be recognised that the movement, transition or animation of features can contribute to the visual appearance of designs, in particular for designs that are not embodied in a physical object. (10)In order to ensure legal certainty, it is appropriate to clarify that protection is conferred upon the right holder for those design features of a product, in whole or in part, which are shown visibly in an application for a registered EU design and made available to the public by way of publication or consultation of the relevant file. While otherwise design features of a given product do not need to be visible at any particular time or in any particular situation of use in order to attract design protection, an exception should apply to the design protection of component parts of a complex product that need to remain visible during normal use of that product. (11)The use of 3D printing technologies in different areas of industry is growing, which results in challenges for design right holders to effectively prevent illegitimate copying of their protected designs. Therefore, it is appropriate to provide that the creation, downloading, copying and making available of any medium or software recording the design for the purpose of reproducing a product that infringes the design, amounts to use of the design being subject to the right holder’s authorisation. (12)In order to ensure design protection and combat counterfeiting effectively, and in line with international obligations of the Union under the framework of the World Trade Organisation (WTO), in particular Article V to the General Agreement on Tariffs and Trade (GATT), which provides for freedom of transit, and, as regards generic medicines, the Declaration on the TRIPS Agreement and Public Health, the holder of a registered EU design should be entitled to prevent third parties from bringing products, in the course of trade, into the Union without being released for free circulation there, where such products come from third countries and without authorisation incorporate a design which is identical or essentially identical to the registered EU design or where a design is applied to those products which is identical or essentially identical to the registered EU design. (13)To that effect, it should be permissible for holders of registered EU designs to prevent entry of infringing products and their placement in all customs situations, also when such products are not intended to be placed on the market of the Union. In performing customs controls, the customs authorities should make use of the powers and procedures laid down in Regulation (EU) No 608/2013 of the European Parliament and the Council, including at the request of the right holders. In particular, the customs authorities should carry out the relevant controls on the basis of risk analysis criteria. (14)It is necessary to reconcile the need to ensure the effective enforcement of design rights with the necessity to avoid hampering the free flow of trade in legitimate products. Therefore, the entitlement of the holder of the registered EU design should lapse where, during proceedings before the European Union design court (‘EU design court’) competent to take a substantive decision on whether the EU design has been infringed, the declarant or the holder of the products is able to prove that the holder of the registered EU design is not entitled to prohibit the placing of the products on the market in the country of final destination. (15)The exclusive rights conferred by a registered EU design should be subject to an appropriate set of limitations. Apart from private and non-commercial use and acts carried out for experimental purposes, permissible use should include acts of reproduction for the purpose of making citations or acts of teaching, referential use in the context of comparative advertising, and use for the purpose of comment, critique or parody, provided that those acts are compatible with fair trade practices and do not unduly prejudice the normal exploitation of the design. Use of a registered EU design by third parties for the purpose of artistic expression should be considered as being fair as long as it is in accordance with honest practices in industrial and commercial matters. Furthermore, the rules on the EU design should be applied in a way that ensures full respect of fundamental rights and freedoms, and in particular the freedom of expression. (16)Directive (EU) [xxx] harmonises the laws of the Member States with regard to the use of protected designs for the purpose of permitting the repair of a complex product so as to restore its original appearance, where the design is applied to or incorporated in a product which constitutes a component part of a complex product upon whose appearance the protected design is dependent. Accordingly, the current transitional repair clause contained in Regulation (EC) No 6/2002 should be converted into a permanent provision. As the intended effect of that provision is to make registered and unregistered Community design rights unenforceable where the design of the component part of a complex product is used for the purpose of the repair of a complex product so as to restore its original appearance, the repair clause should be placed among the available defences to EU design right infringement under Regulation (EC) No 6/2002. Furthermore, for the sake of coherence with the repair clause inserted into Directive (EU) [XXX], and in order to ensure that the scope of design protection is only restricted to prevent design right holders from actually being granted product monopolies, it is necessary to explicitly limit the application of the repair clause set out in Regulation (EC) No 6/2002 to component parts of a complex product upon whose appearance the protected design is dependent. In addition, in order to ensure that consumers are not mislead but are able to make an informed decision between competing products that can be used for the repair, it should also be made explicit in the law that the repair clause cannot be invoked by the manufacturer or the seller of a component part who have failed to duly inform consumers about the origin of the product to be used for the purpose of repair of the complex product. (17)In order to facilitate the marketing of design protected products, in particular by SMEs and individual designers, and to increase awareness of the design registration regimes existing both at Union and national level, a commonly accepted notice consisting of the symbol (D) should be available for use by design right holders and others with their consent. (18)In view of the insignificant number of EU design applications filed at the central industrial property offices of the Member States and the Benelux Office for Intellectual Property, and in order to align the system for EU design applications to the system set out in Regulation (EU) 2017/1001, it should henceforth only be possible to file an EU design application at the Office. (19)Both technological advancement and the experience gained in the application of the current EU design registration system has revealed the need for improvement of certain aspects of procedure. Consequently, certain measures should be taken to update, simplify and speed up procedures where appropriate and to enhance legal certainty and predictability where required. (20)To this end, it is of key importance to provide the appropriate means to allow a clear and precise representation for all designs, which is adaptable to the technical advance for the visualisation of designs and the needs of the Union industry. In order to ensure that the same graphic representation can be used for design applications in one or more Member States and for applications for registered EU designs, the Office, the central industrial property offices of the Member States and the Benelux Office for Intellectual Property should be required to cooperate with each other to establish common standards for the formal requirements that the representation must fulfil. (21)For greater efficiency it is also appropriate to facilitate the filing of multiple applications for registered EU designs by allowing applicants to combine designs in one application without being subject to the condition that the products in which the designs are intended to be incorporated or to which they are intended to be applied all belong to the same class of the Locarno Classification. However, a maximum limit should be provided for to avoid potential abuse of multiple filings. (22)For reasons of efficiency and to streamline proceedings, the means of notifications and communications should be electronic only. (23)In order to render the access to registered EU design protection more affordable and transparent, in particular for SMEs and individual designers that tend to file less designs compared to larger enterprises, it is appropriate to adjust the structure and amount of fees for the application of registered EU designs. (24)Given the essential importance of the amounts of fees payable to the Office for the functioning of the EU design protection system and its complementary relationship as regards national design systems, and in order to align the legislative approach with Regulation (EU) 2017/1001, it is appropriate to set those fee amounts directly in Regulation (EC) No 6/2002 in the form of an annex. The amounts of the fees should be fixed at a level which ensures both that the revenue they produce is in principle sufficient for the budget of the Office to be balanced and that there is coexistence and complementarity between the EU design and the national design systems, also taking into account the size of the market covered by the EU design and the needs of SMEs. (25)Regulation (EC) 6/2002 confers powers on the Commission to adopt rules implementing that Regulation. As a consequence of the entry into force of the Treaty, the powers conferred upon the Commission under Regulation (EC) No 6/2002 need to be aligned with Articles 290 and 291 of the Treaty on the Functioning of the European Union (‘TFEU’). (26)In order to ensure an effective, efficient and expeditious examination and registration of EU design applications by the Office using procedures which are transparent, thorough, fair and equitable, the power to adopt delegated acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of specifying the details on the procedure for amending an application. (27)In order to ensure that a registered EU design can be declared invalid in an effective and efficient way by means of a transparent, thorough, fair and equitable procedure, the power to adopt delegated acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of specifying the procedure for declaring a registered EU design invalid. (28)In order to allow for an effective, efficient and complete review of decisions of the Office by the Boards of Appeal by means of a transparent, thorough, fair and equitable procedure, the power to adopt delegated acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of specifying the details of appeal proceedings where proceedings relating to EU designs require derogations from the provisions set out in delegated acts adopted pursuant to Article 73 of Regulation (EU) 2017/1001.

(29)In order to ensure a smooth, effective and efficient operation of the EU design system, the power to adopt delegated acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of specifying the requirements as to the details on oral proceedings and the detailed arrangements for taking of evidence, the detailed arrangements for notification, the means of communication and the forms to be used by the parties to proceedings, the rules governing the calculation and duration of time limits, the procedures for the revocation of a decision or for cancellation of an entry in the Register of EU designs, the detailed arrangements for the resumption of proceedings, and the details on representation before the Office. (30)In order to ensure an effective and efficient organisation of the Boards of Appeal, the power to adopt delegated acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of specifying the details on the organisation of the Boards of Appeal where proceedings relating to EU designs require derogation from the delegated acts adopted pursuant to Article 168 of Regulation (EU) 2017/1001. (31)It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. (32)In order to ensure uniform conditions for the implementation of Regulation (EC) No 6/2002, implementing powers should be conferred on the Commission in respect of specifying the details concerning applications, requests, certificates, claims, regulations, notifications and any other document under the relevant procedural requirements established by Regulation (EC) No 6/2002 as well as in respect of maximum rates for costs essential to the proceedings and actually incurred, details concerning publications in the European Union Designs Bulletin and the Official Journal of the Office, the detailed arrangements for exchange of information between the Office and national authorities, detailed arrangements concerning translations of supporting documents in written proceedings, and exact types of decisions to be taken by a single member of the Invalidity Divisions. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council. (33)Given the advanced harmonisation of copyright law in the Union, it is appropriate to adjust the principle of cumulation of protection under Regulation (EC) No 6/2002 and under copyright law by allowing designs protected by EU design rights to be protected as copyright works, provided that the requirements of Union copyright law are met. (34)Regulation (EC) No 6/2002 should therefore be amended accordingly and Regulation (EC) No 2246/2002 should be repealed. (35)Since the objectives of this Regulation cannot be sufficiently achieved by the Member States but can rather, by reason of the autonomous nature of the EU design system being independent from national systems, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives. (36)The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council and delivered an opinion on ..., HAVE ADOPTED THIS REGULATION: Article 1 Regulation (EC) No 6/2002 is amended as follows: (1)the title is replaced by the following: ‘Council Regulation (EC) No 6/2002 of 12 December 2001 on European Union designs’; (2)in Article 1, paragraph 1 is replaced by the following: ‘1. A design which complies with the conditions contained in this Regulation is hereinafter referred to as a “European Union design” (‘EU design’).’; (3)throughout the articles, the words ‘Community design’ are replaced by ‘EU design’ and any necessary grammatical changes are made; (4)throughout the Regulation, the term ‘Community design court’ is replaced by “EU design court’ and any necessary grammatical changes are made; (5)in Article 1(3), Article 7(1), Article 11(1), Article 22(1), Article 27(1), Article 96(1), Article 98(1), Article 98(5), Article 106a(1), Article 106a(2), Article 106d(1), Article 106d(2), and Article 110a(1), the words ‘the Community’ are replaced by ‘the Union’ and any necessary grammatical changes are made; (6)Article 2 is replaced by the following: ‘Article 2

European Union Intellectual Property Office The European Union Intellectual Property Office (‘the Office’), established by Regulation (EU) 2017/1001 of the European Parliament and of the Council*, shall carry out the tasks entrusted to it by this Regulation. * Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ L 154, 16.6.2017, p.1).’; (7)the following Article is inserted: ‘Article 2a Capacity to act For the purpose of implementing this Regulation, companies or firms and other legal bodies shall be regarded as legal persons if, under the terms of the law governing them, they have the capacity in their own name to have rights and obligations of all kinds, to make contracts or accomplish other legal acts, and to sue and be sued.’; (8)Article 3 is replaced by the following: ‘Article 3 Definitions For the purposes of this Regulation, the following definitions apply: (1)‘design’ means the appearance of the whole or a part of a product resulting from the features, in particular, the lines, contours, colours, shape, texture, materials of the product itself and/or its decoration, including the movement, transition or any other sort of animation of those features; (2)‘product’ means any industrial or handicraft item other than computer programs, regardless of whether it is embodied in a physical object or materialises in a digital form, including: (a)packaging, sets of articles, get-up, spatial arrangement of items intended to form, in particular, an interior environment, and parts intended to be assembled into a complex product; (b)graphic works or symbols, logos, surface patterns, typographic typefaces, and graphical user interfaces; (3)‘complex product’ means a product that is composed of multiple components which can be replaced, permitting disassembly and reassembly of the product.’; (9)in Article 4, paragraph 1 is replaced by the following: ‘1. A design shall be protected by an EU design, if it is new and has individual character.’; (10)in Article 7(2), the introductory words are replaced by the following:

‘2. A disclosure shall not be taken into consideration for the purpose of applying Articles 5 and 6 if the disclosed design, which is identical with or does not differ in its overall impression from the design for which protection is claimed under a registered EU design, has been made available to the public:’; (11)Article 12 is replaced by the following: ‘Article 12 Commencement and term of protection of the registered EU design 1. Protection by a registered EU design of a design which meets the requirements set out in Section 1 shall arise with registration by the Office. 2. A registered EU design shall be registered for a period of five years calculated from the date of filing of the application for registration. The right holder may have the term of protection renewed for one or more periods of 5 years each, up to a total term of 25 years from the date of filing of the application for registration.’; (12)Article 13 is deleted; (13)Articles 15 and 16 are replaced by the following: ‘Article 15 Claims relating to the entitlement to an EU design 1. If an unregistered EU design is disclosed or claimed by a person who is not entitled to it under Article 14 or if a registered EU design has been applied for or registered in the name of such a person, the person entitled to it under that provision may, without prejudice to any other remedy which may be open to him, claim before the competent court or authority of the Member State concerned to become recognised as the legitimate holder of the EU design. 2. Where a person is jointly entitled to an EU design, that person may, in accordance with paragraph 1, claim to become recognised as joint holder. 3. Legal proceedings under paragraphs 1 or 2 shall be barred three years after the date of publication of a registered EU design or the date of disclosure of an unregistered EU design. This provision shall not apply if the person who is not entitled to the EU design was acting in bad faith at the time when such design was applied for, disclosed or acquired. 4. The person entitled to an EU design under Article 14 may submit a request, pursuant to paragraph 1 of this Article, for a change of ownership to the Office, together with a final decision of the competent court or authority of the Member State concerned. 5. In the case of a registered EU design, the following shall be entered in the Register of EU designs referred to in Article 72 (‘the Register’): (a)an indication that legal proceedings under paragraph 1 have been instituted before the competent court or authority of the Member State concerned; (b)the date and particulars of the final decision of the competent court or authority of the Member State concerned or any other termination of the proceedings; (c)any change in the ownership of the registered EU design resulting from the final decision of the competent court or authority of the Member State concerned. Article 16 Effects of a judgment on entitlement to a registered EU design

1. Where there is a complete change of ownership of a registered EU design as a result of legal proceedings under Article 15(1), licences and other rights shall lapse upon the entering in the Register of the new holder of the registered EU design. 2. If, before the institution of the legal proceedings under Article 15(1) has been registered, the holder or a licensee of the registered EU design has exploited the design within the Union or made serious and effective preparations to do so, that holder or licensee may continue such exploitation provided that they request, within a period of 3 months of the date of the entering in the Register of the new holder, a non-exclusive licence from the new holder whose name is entered in the Register. The licence shall be granted for a reasonable period and upon reasonable terms. 3. Paragraph 2 shall not apply if the holder of the registered EU design or the licensee was acting in bad faith at the time when that holder or licensee began to exploit the design or to make preparations to do so.’; (14)in Article 18, the following sentence is added: ‘That right includes the right to enter a change of the name of the designer or of the team in the Register.’; (15)the following Article 18a is inserted after the heading of Section 4: ‘Article 18a Object of protection Protection shall be conferred for those features of the appearance of a registered EU design which are shown visibly in the application for registration.’; (16)Articles 19 to 21 are replaced by the following: ‘Article 19 Rights conferred by the EU design 1. A registered EU design shall confer on its holder the exclusive right to use it and to prevent any third party not having the consent of the holder from using it. 2. The following, in particular, may be prohibited under paragraph 1: (a)making, offering, putting on the market, or using a product in which the design is incorporated or to which the design is applied; (b)importing or exporting a product referred to in point (a); (c)stocking a product referred to in point (a) for the purposes referred to in points (a) and (b); (d)creating, downloading, copying and sharing or distributing to others any medium or software recording the design for the purpose of enabling a product referred to in point (a) to be made. 3. By way of derogation from Article 10(1), the holder of a registered EU design shall be entitled to prevent all third parties from bringing products, in the course of trade, from third countries into the Union, that are not released for free circulation in the Union, where the design is identically incorporated in or applied to those products, or the design cannot be distinguished in its essential aspects from such products, and an authorisation has not been given. The right referred to in the first subparagraph shall lapse, if, during proceedings to determine whether the EU design has been infringed, initiated in accordance with Regulation (EU) No 608/2013 of the European Parliament and of the Council*, evidence is provided by the declarant or the holder of the products that the holder of the registered EU design is not entitled to prohibit the placing of the products on the market in the country of final destination.

4. The holder of an unregistered EU design shall be entitled to prevent acts referred to in paragraphs 1 and 2 only if the contested use results from copying that design. The contested use referred above shall not be deemed to result from copying the unregistered EU design if it results from an independent work of creation by a designer who may be reasonably thought not to be familiar with the design made available to the public by the holder. 5. Paragraph 4 shall also apply to a registered EU design subject to deferment of publication as long as the relevant entries in the Register and the file have not been made available to the public in accordance with Article 50(4). Article 20 Limitation of the rights conferred by an EU design 1. The rights conferred by an EU design shall not be exercised in respect of: (a)acts carried out privately and for non-commercial purposes; (b)acts carried out for experimental purposes; (c)acts of reproduction for the purpose of making citations or of teaching; (d)acts carried out for the purpose of identifying or referring to a product as that of the design right holder; (e)acts carried out for the purpose of comment, critique or parody; (f)the equipment on ships and aircraft that are registered in a third country and that temporarily enter the territory of the Union; (g)the importation into the Union of spare parts and accessories for the purpose of repairing ships and aircraft referred to in point (f); (h)the execution of repairs on ships and aircraft referred to in point (f). 2. Paragraph 1, points (c), (d) and (e), shall only apply where the acts are compatible with fair trade practices and do not unduly prejudice the normal exploitation of the design, and in the case of point (c), where mention is made of the source of the product in which the design is incorporated or to which the design is applied. Article 20a Repair clause 1. Protection shall not be conferred on an EU design which constitutes a component part of a complex product, upon whose appearance the design of the component part is dependent, and which 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. 2. Paragraph 1 cannot be invoked by the manufacturer or the seller of a component part of a complex product who have failed to duly inform consumers, through a clear and visible indication on the product or in another appropriate form, about the origin 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. Article 21

Exhaustion of rights The rights conferred by an EU design shall not extend to acts relating to a product in which a design included within the scope of protection of the EU design is incorporated or to which it is applied, when the product has been put on the market in the European Economic Area (EEA) by the holder of the EU design or with his consent.’; * Regulation (EU) No 608/2013 of the European Parliament and of the Council of 12 June 2013 concerning customs enforcement of intellectual property rights and repealing Council Regulation (EC) No 1383/2003 (OJ L 181, 29.6.2013, p. 15). (17)in Article 24, paragraph 2 is replaced by the following: ‘2. An EU design may be declared invalid even after the EU design has lapsed or has been surrendered, if the applicant shows a legitimate interest in obtaining a decision on the merits.’; (18)Article 25 is replaced by the following: ‘Article 25 Grounds for invalidity 1. An EU design may be declared invalid only in the following situations: (a)the EU design does not correspond to the definition under Article 3, point (1); (b)the EU design does not fulfil the requirements laid down in Articles 4 to 9; (c)by virtue of a decision of the competent court or authority, the right holder is not entitled to the EU design under Article 14; (d)the EU design is in conflict with a prior design which has been made available to the public, and which is protected from a date prior to the date of filing of the application, or if priority is claimed, the date of priority of the EU design: (i) by a registered EU design or an application for such a design subject to its registration, (ii) by a registered design right of a Member State, or by an application for such a right subject to its registration, or (iii) by a design right registered under the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs of 1999 (‘the Geneva Act’), which has effect in the Union, or by an application for such a right subject to its registration; (e)a distinctive sign is used in a subsequent design, and Union 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; (f)the design constitutes an unauthorised use of a work protected under the copyright law of a Member State; (g)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 (’the Paris Convention’), or of badges, emblems and escutcheons other than those covered by that Article and which are of particular public interest in a Member State.

2. The grounds for invalidity provided for in paragraph 1, points (a) and (b), may be invoked by the following: (a)any natural or legal person; (b)any group or body set up for the purpose of representing the interests of manufacturers, producers, suppliers of services, traders or consumers if that group or body has the capacity to sue and be sued in its own name under the terms of the law governing it. 3. The ground for invalidity provided for in paragraph 1, point (c), may be invoked solely by the person who is entitled to the EU design under Article 14. 4. The grounds for invalidity provided for in paragraph 1, points (d), (e) and (f), may be invoked solely by the following: (a)the applicant for or the holder of the earlier right; (b)the persons who are entitled under Union legislation or the law of the Member State concerned to exercise the rights in question; (c)a licensee authorised by a proprietor of a trade mark or a holder of a design right. 5. The ground for invalidity provided for in paragraph 1, point (g), may be invoked solely by the person or entity concerned by the improper use. 6. By way of derogation from paragraphs 4 and 5, Member States may provide that the grounds provided for in paragraph 1, points (d) and (g) may also be invoked by the appropriate authority of the Member State in question on its own initiative. 7. An EU design may not be declared invalid where the applicant for or holder of one of the rights referred to in paragraph 1, points (d) to (g), has consented expressly to the registration of the EU design before submitting the application for a declaration of invalidity or the counterclaim. 8. Where the applicant for or a holder of one of the rights referred to in paragraph 1, points (d) to (g), has previously applied for a declaration that an EU design is invalid or made a counterclaim in infringement proceedings, they may not submit a new application for a declaration of invalidity or lodge a new counterclaim on the basis of any of the other rights referred to in those points, which could have been invoked in support of the first application or counterclaim.’; (19)in Article 26, paragraph 1 is replaced by the following: ‘1. An EU design which is declared invalid shall be deemed not to have had the effects specified in this Regulation as from the outset.’; (20)the following heading is inserted after Article 26: ‘Section 6 Notice of registration’ (21)the following Article 26a is inserted after the heading of Section 6: ‘Article 26a Registration symbol

The holder of a registered EU design may inform the public that the design is registered by displaying on the product in which the design is incorporated or to which it is applied the letter D enclosed within a circle. Such design notice may be accompanied by the registration number of the design or hyperlinked to the entry of the design in the Register.’; (22)Article 28 is replaced by the following: ‘Article 28 Transfer of the registered EU design 1. An assignment of a registered EU design shall be made in writing and shall be signed by the parties to the contract, except when it is the result of a judgment. An assignment of a registered EU design that does not comply with the requirements set out in the first subparagraph shall be void. 2. On request of one of the parties, a transfer of a registered EU design shall be entered in the Register and published. 3. A request for registration of a transfer in the Register shall contain information identifying the registered EU design, the new holder and, where applicable, the representative of the new holder. It shall also contain documents duly establishing the transfer in accordance with paragraph 1. 4. Where the conditions for the registration of a transfer, as laid down in paragraph 1 or in the implementing acts referred to in Article 28a, are not fulfilled, the Office shall notify the applicant of the deficiencies. If the deficiencies are not remedied within the time limit specified by the Office, it shall reject the application for registration of the transfer. 5. A single application for registration of a transfer may be submitted for two or more registered EU designs, provided that the registered holder and the successor in title are the same for all these registered EU designs. 6. As long as the transfer has not been entered in the Register, the successor in title may not invoke the rights arising from the registration of the registered EU design. 7. Where there are time limits to be observed vis-à-vis the Office, the successor in title may make the corresponding statements to the Office once the request for registration of the transfer has been received by the Office. 8. All documents which require notification to the holder of the registered EU design in accordance with Article 66 shall be addressed to the person registered as holder in the Register.’; (23)the following Article 28a is inserted: ‘Article 28a Conferral of implementing powers regarding transfer The Commission shall adopt implementing acts specifying: (a)the details to be contained in the request for registration of a transfer referred to in Art 28(3); (b)the kind of documentation required to establish a transfer as referred to in Article 28(3), taking account of the agreements given by the registered holder and the successor in title. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 109(2).’;

(24)Articles 31 to 34 are replaced by the following: ‘Article 31 Insolvency proceedings 1. The only insolvency proceedings in which an EU design may be involved are those opened in the Member State within the territory of which the debtor has his centre of main interests. 2. For insurance undertakings as defined in Article 13, point (1), of Directive 2009/138/EC of the European Parliament and of the Council* and credit institutions as defined in Article 4(1) of Regulation (EU) No 575/2013 of the European Parliament and of the Council**, the centre of main interests referred to in paragraph 1 shall be the Member State where the undertaking or institution has been authorised. 3. In the case of joint holdership of an EU design, paragraph 1 shall apply to the share of the joint holder. 4. Where an EU design is involved in insolvency proceedings, an entry to this effect shall, on request of the competent national authority, be made in the Register and published. Article 32 Licensing 1. An EU design may be licensed for the whole or part of the Union. A licence may be exclusive or non-exclusive. 2. The holder may invoke the rights conferred by the EU design against a licensee who contravenes any provision in the licensing contract with regard to: (a)the duration of the licence; (b)the form in which the design may be used; (c)the range of products for which the licence is granted; (d)the quality of the products manufactured by the licensee under the licence. 3. If not stated otherwise in the licensing contract, the licensee may bring proceedings for infringement of an EU design only if its holder consents thereto. However, the holder of an exclusive licence may bring such proceedings if the holder of the EU design, after a formal notice, does not bring infringement proceedings within an appropriate period. 4. A licensee shall, for the purpose of obtaining compensation for damage suffered, be entitled to intervene in infringement proceedings brought by the holder of the EU design. Article 32a Procedure for entering licences and other rights in the Register 1. Article 28(2) and (3), the rules adopted pursuant to Article 28a, and Article 28(6) shall apply mutatis mutandis to the registration of a right in rem or transfer of a right in rem referred to in Article 29, the levy of execution referred to in Article 30, the involvement in insolvency proceedings referred to in Article 31, as well as to the registration of a licence or transfer of a licence as referred to in Article 32. However, the requirement concerning documentary evidence set out in Article 28(3) shall not apply where the request is made by the holder of the EU design.

2. The application for registration of the rights referred to in paragraph 1, where applicable, shall not be deemed to have been filed until the required fee has been paid. 3. The application for registration of a licence may contain a request to record a licence in the Register as one or more of the following: (a)an exclusive licence; (b)a sub-licence in the event that the licence is granted by a licensee whose licence is recorded in the Register; (c)a licence limited to a specific range of products; (d)a licence limited to part of the Union; (e)a temporary licence. Where a request is made to record the licence as a licence referred to in the first subparagraph, point (c), (d), or (e), the application for registration shall indicate the specific product range, the part of the Union or the time period for which the licence is granted. 4. Where the conditions for registration of licences and other rights set out in this Regulation are not fulfilled, the Office shall notify the applicant of the deficiency. If the deficiency is not remedied within a time limit specified by the Office, it shall reject the application for registration. Article 33 Effects vis-à-vis third parties 1. Legal acts referred to in Articles 28, 29 and 32 concerning an EU design shall only have effect vis-à-vis third parties in all the Member States after entry in the Register. Nevertheless, such an act, before it is so entered, shall have effect vis-à-vis third parties who have acquired rights in the registered EU design after the date of that act but who knew of the act at the date on which the rights were acquired. 2. Paragraph 1 shall not apply to a person who acquires the registered EU design or a right concerning the registered EU design by way of transfer of the whole of the undertaking or by any other universal succession. 3. The effects vis-à-vis third parties of the legal acts referred to in Article 30 shall be governed by the law of the Member State determined in accordance with Article 27. 4. The effects vis-à-vis third parties of bankruptcy or similar proceedings shall be governed by the law of the Member State in which such proceedings are first brought within the meaning of national law or of conventions applicable in this field. Article 33a Procedure for cancelling or modifying registrations of licences and other rights 1. A registration effected under Article 32a(1) shall be cancelled or modified upon application by one of the parties concerned. 2. The application shall contain the registration number of the registered EU design, or in the case of a multiple registration, the number of each design, and the particulars of the right for which registration is requested to be cancelled or modified. 3. The application shall be accompanied by documents showing that the registered right no longer exists or that the licensee or the holder of another right consents to the cancellation or modification of the registration.

4. Where the requirements for cancellation or modification of the registration are not satisfied, the Office shall notify the applicant of the deficiencies. If the deficiencies are not remedied within the time limit specified by the Office, it shall reject the application for cancellation or modification of the registration. Article 34 The application for a registered EU design as an object of property Articles 27 to 33a shall apply to applications for registered EU designs. Where the effect of one of those provisions is conditional upon an entry in the Register, that formality shall be performed upon entry of the registered EU design in the Register.’; * Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ L 335 17.12.2009, p. 1). ** Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and amending Regulation (EU) No 648/2012 (OJ L 176 27.6.2013, p. 1). (25)Article 35 is replaced by the following: ‘Article 35 Filing of applications 1. An application for a registered EU design shall be filed at the Office. 2. The Office shall issue to the applicant, without delay, a receipt which shall include at least the file number, a representation, description or other identification of the design, the nature and the number of documents and the date of their receipt. In the case of a multiple application, the receipt issued by the Office shall specify the first design and the number of designs filed.’; (26)Article 36 is amended as follows: (a)paragraphs 1 to 4 are replaced by the following: ‘1. An application for a registered EU design shall contain: (a)a request for registration; (b)information identifying the applicant; (c)a representation of the design suitable for reproduction, permitting all the details of the subject matter for which protection is sought to be clearly distinguished and permitting publication. 2. The application shall further contain an indication of the products in which the design is intended to be incorporated or to which it is intended to be applied. 3. In addition, the application may contain:

(a)a description explaining the representation; (b)a request for deferment of publication of the registration in accordance with Article 50; (c)information identifying the representative if the applicant has appointed one; (d)the classification of the products in which the design is intended to be incorporated or to which it is intended to be applied according to class and subclass of the Locarno Agreement Establishing an International Classification for Industrial Designs (‘the Locarno Classification’), as amended and in force at the date of filing of the design; (e)the citation of the designer or of the team of designers or a statement under the applicant’s responsibility that the designer or the team of designers has waived the right to be cited. 4. The application shall be subject to the payment of the application fee. Where a request for deferment under paragraph 3, point (b), is filed, it shall be subject to an additional fee for deferment of publication.’; (b)paragraph 5 is replaced by the following: ‘5. In addition to the requirements referred to in paragraphs 1 to 4, an application for a registered EU design shall comply with the formal requirements laid down in this Regulation and in the implementing acts adopted pursuant to it. To the extent that those requirements relate to the design representation and the means thereof as referred to in paragraph 1, point (c), the Executive Director shall determine the manner of numbering different views in the event of representation by static views, the formats and size of the electronic file as well as any other relevant technical specification. If those requirements provide for the identification of a subject matter for which no protection is sought by way of certain types of visual disclaimers or for the filing of certain specific types of views, the Executive Director may determine additional types of visual disclaimers and specific types of views.’; (27)the following Article 36a is inserted: ‘Article 36a Conferral of implementing powers regarding the application The Commission shall adopt implementing acts specifying the details to be contained in the application for a registered EU design. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 109(2).’; (28)Article 37 is amended as follows: (a)paragraphs 1 and 2 are replaced by the following: 1. A maximum number of 50 designs may be combined in one multiple application for registered EU designs. Each design contained in a multiple application shall be numbered by the Office in accordance with a system determined by the Executive Director. 2. In addition to the fees referred to in Article 36(4), the multiple application shall be subject to payment of an application fee in respect of each additional design included in the multiple application and, in case the application contains a request for deferment of publication, a fee for deferment of publication in respect of each design included in the multiple application for which deferment is requested.’; (b)paragraph 3 is replaced by the following: ‘3. The multiple application shall comply with the conditions of representation laid down in the implementing acts adopted pursuant to Article 37a.’; (c) paragraph 4 is replaced by the following: ‘4. Each of the designs contained in a multiple application or a registration based on such application may be dealt with separately from the others. Such a design may, separately from the others, be enforced, be licensed, be the subject of a right in rem, a levy of execution or insolvency proceedings, be surrendered, renewed or assigned, be the subject of deferred publication or be declared invalid.’;

(29)the following Article 37a is inserted: ‘Article 37a Conferral of implementing powers regarding multiple applications The Commission shall adopt implementing acts specifying the details to be contained in the multiple application. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 109(2).’; (30)Articles 38 and 39 are replaced by the following: ‘Article 38 Date of filing The date of filing of an application for a registered EU design shall be the date on which documents containing the information specified in Article 36(1) are filed with the Office by the applicant, subject to the payment of the application fees referred to in Articles 36(4) and 37(2) within one month of filing those documents. Article 39 Equivalence of Union filing with national filing An application for a registered EU design which has been accorded a date of filing shall, in the Member States, be equivalent to a regular national filing, including where appropriate the priority claimed for the EU design application.’; (31)Articles 40, 41 and 42 are replaced by the following: ‘Article 40 Classification and product indications 1. Products in which an EU design is intended to be incorporated or to which it is intended to be applied shall be classified in accordance with the Locarno Classification, as amended and in force at the date of filing of the design. 2. The product indication shall identify clearly and precisely the nature of the products and shall enable each product to be classified in only one class and subclass of the Locarno Classification, if possible using the harmonised database of product indications made available by the Office. The product indication shall accord with the representation of the design. 3. The products shall be grouped according to the classes of the Locarno Classification, each group being preceded by the number of the class to which that group of products belongs and presented in the order of the classes and subclasses under that classification. 4. When the applicant uses product indications which are not contained in the database referred to in paragraph 2, or which do not accord with the representation of the design, the Office may propose product indications from that database. The Office may proceed with the examination based on the proposed product indications when the applicant does not reply within the time limit specified by the Office. Article 41 Right of priority

1. A person who has duly filed an application for a design right or for a utility model in or for any State party to the Paris Convention, or to the Agreement establishing the World Trade Organisation, or his successors in title, shall enjoy, for the purpose of filing an application for a registered EU design in respect of the same design or utility model, a right of priority during a period of 6 months from the date of filing of the first application. 2. Every filing that under the national law of the State where it was made or under bilateral or multilateral agreements is sufficient to establish the date on which the application was filed, whatever may be the outcome of the application, shall be recognised as giving rise to a right of priority. 3. A subsequent application for a design which was the subject of a previous first application, and which is filed in or in respect of the same State, shall be considered as the first application for the purpose of determining priority, provided that, at the date of the filing of the subsequent application, the previous application has been withdrawn, abandoned or refused without being open to public inspection and without leaving any rights outstanding, and has not served as a basis for claiming a right of priority. The previous application may not thereafter serve as a basis for claiming a right of priority. 4. If the first filing has been made in a State which is not a party to the Paris Convention, or to the Agreement establishing the World Trade Organisation, paragraphs 1 to 3 shall apply only in so far as that State, according to published findings, grants, on the basis of the first filing made at the Office and subject to conditions equivalent to those laid down in this Regulation, a right of priority having equivalent effect. The Executive Director shall, where necessary, request the Commission to consider enquiring as to whether the State referred to in the first sentence accords such reciprocal treatment. If the Commission determines that reciprocal treatment is accorded, it shall publish a communication to that effect in the Official Journal of the European Union. 5. The right of priority referred to in paragraph 4 shall apply from the date of publication in the Official Journal of the European Union of the communication determining that reciprocal treatment is accorded, unless the communication states an earlier date from which it is applicable. It shall cease to apply from the date of publication in the Official Journal of the European Union of a communication of the Commission to the effect that reciprocal treatment is no longer accorded, unless the communication states an earlier date from which it is applicable. 6. Communications referred to in paragraphs 4 and 5 shall also be published in the Official Journal of the Office. Article 42 Claiming priority 1. An applicant for a registered EU design desiring to take advantage of the priority of a previous application shall file a declaration of priority either together with the application or within two months of the date of filing. Such declaration of priority shall include the date and country of the previous application. The file number of the previous application and the documentation in support of the priority claim shall be filed within three months of the date of filing of the declaration of priority. 2. The Executive Director may determine that the documentation to be provided by the applicant in support of the priority claim may consist of less than the documentation required under the implementing acts adopted pursuant to Article 42a, provided that the information required is available to the Office from other sources.’; (32)the following Article 42a is inserted: ‘Article 42a Conferral of implementing powers regarding the claim of priority The Commission shall adopt implementing acts specifying the kind of documentation to be filed for claiming the priority of a previous application in accordance with Article 42(1). Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 109(2).’; (33)Article 43 is replaced by the following: ‘Article 43 Effect of priority right The right of priority shall have the effect that the date of priority shall count as the date of the filing of the application for a registered EU design for the purposes of Articles 5, 6, 7 and 22, Article 25(1), points (d), (e) and (f), and Article 50(1).’; (34)Article 44 is replaced by the following: ‘Article 44

Exhibition priority 1. If an applicant for a registered EU design has disclosed products in which the design is incorporated, or to which it is applied, at an official or officially recognised international exhibition falling within the 1928 Convention on International Exhibitions as last revised on 30 November 1972, the applicant may, if the application is filed within a period of 6 months from the date of the first disclosure of such products, claim a right of priority from that date. 2. An applicant who wishes to claim priority pursuant to paragraph 1 shall file a declaration of priority either together with the application or within 2 months of the date of filing. The applicant shall, within 3 months of the declaration of priority, file evidence that the products in which the design is incorporated, or to which it is applied, have been disclosed within the meaning of paragraph 1. 3. An exhibition priority granted in a Member State or in a third country does not extend the period of priority laid down in Article 41.’; (35)the following Article 44a is inserted: ‘Article 44a Conferral of implementing powers The Commission shall adopt implementing acts specifying the type and details of evidence to be filed for claiming an exhibition priority in accordance with Article 44(2). Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 109(2).’; (36)the heading of Title V is replaced by the following: ‘TITLE V REGISTRATION PROCEDURE, RENEWAL AND ALTERATION’ (37)Article 45 is amended as follows: (a)paragraph 1 is replaced by the following: ‘1. The Office shall examine whether the application for a registered EU design complies with the requirements for the accordance of a date of filing laid down in Article 38.’. (b)paragraphs 2 and 3 are replaced by the following: ‘2. The Office shall examine whether: (a)the application for a registered EU design complies with the conditions and requirements referred to in Article 36(5) and, in the case of a multiple application, in Article 37(3); (b)where relevant, the additional fee for deferment of publication pursuant to Article 36(4) has been paid within the prescribed period; (c)where relevant, the additional application fees for a multiple application pursuant to Article 37(2) have been paid within the prescribed period. 3. Where the application for a registered EU design does not satisfy the requirements referred to in paragraph 1, the Office shall request the applicant to remedy the deficiencies or the default on payment within 2 months of the notification of that request.

4. If the applicant does not comply with the request with regard to the requirements referred to in paragraph 1, the application shall not be dealt with as an application for a registered EU design. If the applicant complies with the request with regard to those requirements, the Office shall accord as the date of filing of the application the date on which the deficiencies or the default on payment are remedied. 5. If the applicant does not comply with the request with regard to the requirements referred to in paragraph 2, points (a) and (b), the Office shall refuse the application. 6. If the applicant does not comply with the request with regard to the requirements referred to in paragraph 2, point (c), the application shall not be dealt with as an application for a registered EU design in respect of the additional designs unless it is clear which designs the amount paid is intended to cover. In the absence of other criteria to determine which designs are intended to be covered, the Office shall treat the designs in the numerical order in which they are represented in accordance with the rules adopted pursuant to Article 37a. The application shall not be dealt with as an application for a registered EU design in respect of those designs for which the additional application fees have not been paid or have not been paid in full. 7. Failure to satisfy the requirements concerning a priority claim shall result in the loss of the right of priority for the application.’; (38)Article 46 is deleted; (39)Article 47 is replaced by the following: ‘Article 47 Grounds for non-registrability 1. If the Office, in carrying out the examination pursuant to Article 45, notices that the design for which protection is sought does not correspond to the definition in Article 3, point (1), or is contrary to public policy or to accepted principles of morality, it shall notify the applicant that the design is non-registrable, specifying the ground for non-registrability. 2. In the notification referred to in paragraph 1, the Office shall specify a period within which the applicant may submit observations, withdraw the application or the objected views or submit an amended representation of the design that differs only in immaterial details from the representation as originally filed. 3. Where the applicant fails to overcome the grounds for non-registrability, the Office shall refuse the application. If those grounds concern only some of the designs contained in a multiple application, the Office shall refuse the application only in so far as those designs are concerned.’; (40)the following Article 47a is inserted: ‘Article 47a Withdrawal and amendment 1. The applicant may at any time withdraw an EU design application or, in the case of a multiple application, withdraw some of the designs contained in the application. 2. The applicant may at any time amend the representation of the EU design applied for in immaterial details.’; (41)the following Article 47b is inserted: ‘Article 47b Delegation of power regarding the amendment of the application The Commission is empowered to adopt delegated acts in accordance with Article 109(2) to supplement this Regulation by specifying the details of the procedure for the amendment of the application as referred to in Article 47a(2).’;

(42)Article 48 is replaced by the following: ‘Article 48 Registration 1. If the requirements for an application for a registered EU design have been fulfilled, and to the extent that the application has not been refused pursuant to Article 47, the Office shall enter the design contained in the application and the particulars referred to in Article 72(2) in the Register. 2. If the application contains a request for deferment of publication pursuant to Article 50, an indication of that request and the date of expiry of the period of deferment shall also be entered in the Register. 3. The registration shall bear the date of filing of the application referred to in Article 38. 4. The fees payable pursuant to Articles 36(4) and 37(2) shall not be refunded even if the design applied for is not registered.’; (43)Article 49 is replaced by the following: ‘Article 49 Publication Upon registration, the Office shall publish the registered EU design in the EU Designs Bulletin as referred to in Article 73(1), point (a).’. (44)the following Article 49a is inserted: ‘Article 49a Conferral of implementing powers regarding publication The Commission shall adopt implementing acts laying down the details to be contained in the publication referred to in Article 49. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 109(2).’; (45)Article 50 is replaced by the following: ‘Article 50 Deferment of publication 1. The applicant for a registered EU design may request, when filing the application, that the publication of the registered EU design be deferred for a period of 30 months from the date of filing the application or, if a priority is claimed, from the date of priority. 2. Upon a request referred to in paragraph 1, where the conditions set out in Article 48 are satisfied, the registered EU design shall be registered, but neither the representation of the design nor any file relating to the application shall, subject to Article 74(2), be open to public inspection.

3. The Office shall publish in the EU Designs Bulletin an indication of a request referred to in paragraph 1. The indication shall be accompanied by information identifying the right holder of the registered design, the name of the representative, if any, the date of filing and registration, and the file number of the application. Neither the representation of the design nor any particulars identifying its appearance shall be published. 4. At the expiry of the period of deferment, or at any earlier date on request by the right holder, the Office shall open to public inspection all the entries in the Register and the file relating to the application and shall publish the registered EU design in the EU Designs Bulletin. 5. The right holder may prevent publication of the registered EU design as referred to in paragraph 4, by submitting a request for surrender of the EU design in accordance with Article 51 at the latest 3 months before expiry of the period of deferment. Any requests for the entry of the surrender in the Register that do not comply with the requirements set out in Article 51 and the implementing acts adopted pursuant to Article 51a, or that are submitted after the time limit referred to in the first sentence, shall be rejected. 6. In the case of a registration on the basis of a multiple application, the holder shall, together with the request for earlier publication referred to in paragraph 4 or the request for surrender referred to in paragraph 5, clearly indicate which of the designs contained in the application are to be published earlier or surrendered and for which designs deferment of publication is to be continued. 7. If the holder fails to comply with the requirement set out in paragraph 6, the Office shall request the holder to remedy the deficiency within a specified time limit, which shall in no case expire after the 30-month deferment period. 8. Failure to remedy the deficiency referred to in paragraph 7 within the specified time limit shall result in the request for early publication being deemed not to have been filed or the request for surrender being rejected. 9. The institution of legal proceedings on the basis of a registered EU design during the period of deferment of publication shall be subject to the condition that the information contained in the Register and in the file relating to the application has been communicated to the person against whom the action is brought.’; (46)the following Article 50a is inserted: ‘Article 50a Publication after the period of deferment The Office shall, at the expiry of the period of deferment referred to in Article 50 or, in the case of a request for earlier publication, as soon as technically possible: (a)publish the registered EU design in the EU Designs Bulletin, with the indications set out in the rules adopted pursuant to Article 49a, together with an indication of the fact that the application contained a request for deferment of publication pursuant to Article 50; (b)make available for public inspection any file relating to the design; (c)open to public inspection all the entries in the Register, including any entries withheld from inspection pursuant to Article 74(5).’; (47)the following Article 50b is inserted: ‘Article 50b Registration certificates After publication of the registered EU design, the Office shall issue a certificate of registration. The Office shall provide certified or uncertified copies of the certificate subject to the payment of a fee, where those copies are issued by other than electronic means.’; (48)The following Articles 50c and 50d are inserted: ‘Article 50c

Conferral of implementing powers The Commission shall adopt implementing acts specifying the details to be contained in and the form of the certificate of registration referred to in Article 50b. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 109(2). Article 50d Renewal 1. The registration of the EU design shall be renewed at the request of the right holder or of any person expressly authorised by the right holder,