COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT REPORT Accompanying the documents to the 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 and the Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the legal protection of designs (recast)
Date: 2022-11-28
Institutions: Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, European Commission
Subjects: European Union Intellectual Property Office, codification of EU law, designs and models, single market, spare part, trade-mark law

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 28.11.2022  SWD(2022) 368 final  COMMISSION STAFF WORKING DOCUMENT  IMPACT ASSESSMENT REPORT  Accompanying the documents to the 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 and the            Proposal for a      DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL            on the legal protection of designs (recast) {COM(2022) 666 final} - {COM(2022) 667 final} - {SEC(2022) 422 final} - {SWD(2022) 367 final} - {SWD(2022) 369 final}  
 
 
Table of contents  

1. 

INTRODUCTION ................................................................................................................................ 4 

1.1. 

Importance  of  industrial  designs  and  available  systems  of  design 
protection ........................................................................................................... 4 
1.2.  Political context ................................................................................................. 5 

2. 

PROBLEM DEFINITION .................................................................................................................... 7 

2.1.  What are the problems? ..................................................................................... 7 
2.1.1. Disruption of trade and competition in the spare parts area .............................. 8 
2.1.2. Regulatory burdens .......................................................................................... 12 
2.2.  How will the problems evolve? ....................................................................... 21 
2.2.1. Single market and competition in spare parts market ..................................... 21 
2.2.2. Regulatory burdens .......................................................................................... 25 

3.  WHY SHOULD THE EU ACT? ........................................................................................................ 27 

3.1.  Legal basis ....................................................................................................... 27 
3.2.  Subsidiarity: Necessity of EU action ............................................................... 27 
3.3.  Subsidiarity: Added value of EU action .......................................................... 28 

4.  OBJECTIVES: WHAT IS TO BE ACHIEVED? ............................................................................... 28 

4.1.  General objectives ........................................................................................... 28 
4.2.  Specific objective ............................................................................................ 28 

5.  WHAT ARE THE AVAILABLE POLICY OPTIONS? .................................................................... 28 

5.1.  What is the baseline from which options are assessed? .................................. 28 
5.2.  Description of the policy options .................................................................... 28 
5.2.1. Options to tackle Objective 1 on spare parts protection .................................. 28 
5.2.2. Options to tackle Objective 2 on complex procedures and sub-optimal 

fees ................................................................................................................... 29 
5.2.3. Options to tackle Objective 3 on divergent procedural rules .......................... 31 
5.3.  Options discarded at an early stage ................................................................. 32 
5.3.1. Spare parts protection ...................................................................................... 32 
5.3.2. Further harmonisation of national rules .......................................................... 33 

6.  WHAT ARE THE IMPACTS OF THE POLICY OPTIONS? ........................................................... 33 

liberalisation  for  new  designs  followed  by 

6.1.  Spare parts protection ...................................................................................... 33 
6.1.1. Full liberalisation for all designs (Option 1.1) ................................................ 33 
6.1.2. Instant  full 

full 
liberalisation for old designs after transitional ten-year period (Option 
1.2) ................................................................................................................... 39 
6.1.3. Full liberalisation for new designs (Option 1.3) .............................................. 41 
6.2.  Simplification and streamlining of RCD procedures (Option 2) ..................... 41 
6.3 RCD fees ............................................................................................................. 42 
6.4 Options for further harmonisation ....................................................................... 47 

7.  HOW DO THE OPTIONS COMPARE? ............................................................................................ 50 

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8. 

PREFERRED OPTION ...................................................................................................................... 55 

8.1 Conclusion on impacts and coherence ................................................................ 55 
8.2 Compatibility with International Obligations ...................................................... 56 
8.3 REFIT (simplification and improved efficiency) ................................................ 56 

9.   HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED? .................................. 57 

ANNEX 1: PROCEDURAL INFORMATION ............................................................................................ 59 

ANNEX 2: STAKEHOLDER CONSULTATION ....................................................................................... 61 

ANNEX 2A: STAKEHOLDERS VIEWS ON SPARE PARTS LIBERALISATION ................................. 72 

ANNEX 3: WHO IS AFFECTED AND HOW? .......................................................................................... 73 

ANNEX 4: ANALYTICAL METHODS ..................................................................................................... 75 

ANNEX  5:  PROPOSALS  TO  BE  COVERED  BY  THE  REVISION  OF  THE  REGULATORY 

FRAMEWORK ................................................................................................................................... 77 

ANNEX 6: SPARE PARTS PROTECTION IN MEMBER STATES ......................................................... 79 

ANNEX 7: EVOLUTION OF EUIPO BUDGET ........................................................................................ 80 

ANNEX 8: MEMBER STATE FEES .......................................................................................................... 88 

ANNEX 9: IMPACT OF FEE CHANGES AND OTHER SIMPLIFICATIONS ........................................ 93 

9.1 Proposed changes and summary of impacts ........................................................ 93 
9.2 Changes in basic registration fee ......................................................................... 93 
9.3 Changes in renewal fees ...................................................................................... 95 
9.4 Annual EU-wide impacts of fee changes ............................................................ 99 
9.5 Impacts of fee changes on number of designs applications .............................. 100 
9.6 Impact of elimination of transfer fee ................................................................. 102 
9.7 Impact of limiting multiple submissions to 50 designs per application ............ 102 
9.8 Comparison to national registration fees ........................................................... 102 
9.9 Impact of abolition of unity of class requirement (Option 2) ............................ 105 
9.10  Impact  of  simplification  in  requirements  for  the  representation  of 

designs (Option 2) ......................................................................................... 105 
9.11 Summary of impacts Options 2 and 3 ............................................................. 106 

ANNEX 10: DEFINITION OF SUBJECT MATTER OF PROTECTION ................................................ 108 

ANNEX 11: RELATIONSHIP TO COPYRIGHT PROTECTION ........................................................... 109 

ANNEX 12: AWARENESS RAISING ACTIVITIES ............................................................................... 113 

ANNEX 13: COEXISTENCE OF NATIONAL AND EU DESIGN PROTECTION SYSTEMS............. 114 

ANNEX 14: DICTIONARY ...................................................................................................................... 116 

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Glossary 

Term or acronym 

Meaning or definition 

CDR 

CJEU 

DDir 

EUIPN 

EUIPO 

Community Design Regulation (EC) 6/2002 

Court of Justice of the European Union 

Design Directive 98/71/EC 

European Union Intellectual Property Network 

European Union Intellectual Property Office 

EUTM / EUTMR / TMD 

EU Trade Mark /EU Trade Mark Regulation / Trade Mark Directive 

IAM 

IP 

OEM 

OES 

Independent Aftermarket Suppliers 

Intellectual property 

Original Equipment Manufacturer 

Original Equipment Supplier 

MVBER 

Motor Vehicle Block Exemption Regulation 

RCD 

SME 

TRIPS 

UCD 

VM 

WIPO 

Registered Community Design 

Small and Medium-Sized Enterprise 

Agreement on Trade-Related Aspects of Intellectual Property Rights 

Unregistered Community Design 

Vehicle Manufacturer 

World Intellectual Property Organisation 

See also Annex 12 for definitions. 

3 

 
 
 
 
1. 

INTRODUCTION 

1.1. 

Importance  of  industrial  designs  and  available  systems  of  design 
protection 

Design is  what makes  a product  appealing. Visual  appeal  is  one of the key  factors that 
influences consumers’ choices and leads them to prefer one product over another. Well-
designed products create an important competitive advantage for producers. Companies 
that invest in design tend to be more profitable and grow faster1. Industrial design rights 
cover the appearance of a product or part of a product. To encourage innovation and the 
creation  of  new  product  design  also  in  the  digital  age,  there  is  an  increasing  need  for 
accessible, modern, effective and consistent legal protection of those rights.  

The  laws  of  the  Member  States  providing  for  design  protection  at  domestic  level  were 
partially  harmonised  by  the  Design  Directive  98/71/EC2  ('the  DDir').  As  a  complement 
alongside  national  systems,  Community  Design  Regulation  (EC)  6/20023  ('the  CDR') 
established  autonomous  unitary  protection  for  designs  in  2003  in  the  form  of  the 
‘unregistered Community design’ and, in particular, the ‘registered Community design’. 
Rules  implementing  the  CDR  are  contained  in  the  Implementing  Regulation  (EC)  No 
2245/20024, and in the Fees Regulation (EC) No 2246/20025.  

Corresponding  to  the  territorial  nature  of  industrial  designs  (guaranteeing  protection  to 
their  owners  only  in  the  territory  of  the  country  or  countries  concerned),  different  (not 
mutually  exclusive)  protection  titles  are  available  for  designers  wishing  to  protect  their 
designs in the EU.  

(a)  National  designs  are  registered  by  the  intellectual  property  (IP)  offices  of  Member 
States.  Currently,  there  are  24  national  offices,  and  one  regional  office  –  the  Benelux 
Office for IP (BOIP)6. National designs generally serve users seeking registration in one, 
or  a  limited  number  of  countries,  as  well  as  users  that  want  to  obtain  much  broader 
protection  in  geographical  terms  but  are  not  able  or  willing  to  opt  for  a  Community 
design.  

(b)  Community  designs,  available  in  registered  (RCD)  and  unregistered  form  (UCD), 
grant  their proprietors a  unitary  IP right  with  an  equal  effect  throughout  the entire EU. 
While the UCD right simply arises by virtue of first disclosure without registration, the 
RCD is registered and administered by the European Union Intellectual Property Office 
(EUIPO)7. The RCD does not replace national design systems, but provides an additional 

1 See Evaluation of EU legislation on design protection, SWD(2020) 264 final, p. 10, referring for research 
incl. case studies on the relationship between design, innovation and business  growth e.g. to UK Design 
Council (2015), The Design Economy: The value of design to the UK. Design Council: UK. Furthermore, 
on the contribution of design-intensive industries to EU economy, see Study “IPR-intensive industries and 
economic performance in the European Union, EPO and EUIPO, September 2019.  
2  Directive  98/71/EC  of  the  European  Parliament  and  of  the  Council  of  13  October  1998  on  the  legal 
protection of designs, OJ L 289, 28.10.1998, p. 28.  
3 Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs, OJ L 3, 5.1.2002, p.1. 
4 Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Council Regulation (EC) 
No 6/2002 on Community designs, OJ L 341, 17.12.2002, p. 28.  
5 Commission Regulation (EC) No 2246/2002 of 16 December 2002 on the fees payable to the Office for 
Harmonization  in  the  Internal  Market  (Trade  Marks  and  Designs)  in  respect  of  the  registration  of 
Community designs, OJ L 341, 17.12.2002, p. 54.  
6 The Benelux countries form since 1975 a regional area of design protection. Designs registered with the 
Benelux Intellectual Property Office cover the entire Benelux area as supranational right. 
7 As decentralised EU Agency, the EUIPO was established in 1994 in Alicante, Spain. 

4 

 
                                                           
legal framework for obtaining a single design registration valid in the territory of all 27 
EU Member States.  

(c) International design registrations are administered by the World Intellectual Property 
Organisation (WIPO), and allow their proprietors to secure worldwide protection through 
the  Hague  System  for  the  International  Registration  of  Industrial  Designs  (‘Hague 
System’)  by  designating  several  countries  or  regions  (e.g.  the  EU)  with  a  single 
application.  

The  national  and  Community  (and  international)  design  systems  coexist  and  are 
complementary to each other. According to individual business needs which will depend 
on the territorial scale of economic activity, the design proprietor can therefore either opt 
for a national or Community-wide (or international) registered design right, or apply for 
and maintain parallel protection within the same territory through both the national and 
Community registration systems (as well as the international system). 

1.2. 

Political context 

The  design  protection  system  in  Europe  has  undergone  a  significant  development  over 
the last 20  years. This  process  started with  the  partial  harmonisation  of  national  design 
laws  in  19988  by  the  DDir  extending  to  key  aspects  of  substantive  design  law  without 
covering  procedures.  It  aimed  at  promoting  the  internal  market  and  preventing  Union-
wide competition being distorted by ensuring that the conditions for obtaining registered 
design  rights  are  identical  and  that  those  rights  confer  upon  right  holders  equivalent 
protection in all Member States.  

The  largest  sticking  point  in  the  negotiations  on  the  DDir  was  the  issue  of  design 
protection for spare parts (see further Section 2.1.1). As no agreement could be reached 
on this point, the DDir includes a so-called freeze-plus clause in Article 14, pursuant to 
which  Member  States  may  retain  their  existing  laws  on  whether  spare  parts  should 
benefit from protection until amendments to the DDir are adopted on a proposal from the 
Commission. They are however permitted to introduce chances to those laws9 only if the 
purpose is to liberalise the spare parts market.  

The  partial  harmonisation  of  national  design  law  was  followed  by  the  creation  of  the 
Community design in 2001 by the CDR. Since then, the CDR has been amended once in 
2006 to give effect to the accession of the Union to the Geneva Act of the Hague System.  
A  proposal  presented  by  the  Commission  in  200410  to  harmonise  design  protection  of 
visible spare parts through the introduction of a ‘repair clause’ into the DDir (as already 
contained in the transitional Article 110(1) CDR, see further on that in Section 2.1.1) did 
not  receive  sufficient  support  in  the  Council,  despite  overwhelming  support  by  the 
European Parliament11, and was withdrawn in 2014. 

8 Directive 98/71/EC had to be transposed into national law by 28 October 2001. 
9 For an overview of the currently existing laws in the Member States see Section 2.1.1 and Annex 6. 
10 Proposal for a Directive of the European Parliament and of the Council amending Directive 98/71/EC on 
the  legal  protection  of  designs,  COM(2004)  582  (final).  It  was  based  on  Article  18  DDir  whereby  the 
Commission  shall  propose  any  changes  to  the  DDir  needed  for  the  completion  of  the  internal  market  in 
respect of spare parts at latest one year after analysing the consequences of the provisions of the DDir.   
11 European Parliament legislative resolution of 12 December 2007 on the proposal for a directive of the 
European Parliament and of the Council amending Directive 98/71/EC on the legal protection of designs 
(COM(2004)0582-C6-0119/2004-2004/0203(COD)).  

5 

 
                                                           
The introduction of the RCD as complement to national design rights has led to a clear 
and  substantial  (steady  upward  trend)  net  increase  in  design  applications  in  the  EU 
overall, taking the numbers of RCD filings and national design filings together12. While 
total volumes of national design filings balanced around 120,000 annually in the past ten 
years,  RCD  filings  grew  on  average  by 3.5%  between  2010  and  2019  (with  an  overall 
growth  rate  of  36.2%  when  comparing  the  2019  and  2020  filing  volumes),  leading  to 
988,200  individual  RCD  filings13,  which  nevertheless  translates  only  into  filing  by 
13,400 owners in 2020 (1/3 of which are natural persons). In October 2021 there were a 
total of around 157,000 RCD owners (including 50,700 natural persons). As shown also 
by the responses to  the two open  public consultations “Evaluation  of design legislation 
on  design  protection”  (“First  Public  Consultation”)14  and  “Review  of  EU  rules  on 
industrial  design”  (“Second  Public  Consultation”)15,  businesses  increasingly  demand 
more  tailored  and  streamlined  design  registration  systems,  which  are  more  consistent, 
publicly accessible and technologically up-to-date. In addition, the business environment 
has changed significantly  over the past  two decades, notably with the  expansion of the 
internet  and  other  electronic  business  tools.  The  significance  of  new  technological 
designs  such  as  graphical  user  interfaces  (GUIs)  and  icon  designs  has  been  growing 
substantially16. 
Therefore,  in  line  with  the  Commission’s  Better  Regulation  agenda17  to  review  EU 
policies regularly, in 2014 the Commission launched an evaluation of the functioning of 
the design protection systems in the EU, involving a comprehensive economic and legal 
assessment, supported by a series of studies. The Council of the European Union adopted 
on 11 November 2020 conclusions on intellectual property policy and the revision of the 
industrial  designs  system  in  the  Union18.  The  Council  called  on  the  Commission  to 
present proposals for the revision of, respectively, the CDR, and the DDir, to modernise 
the  EU  design  protection  systems  and  to  make  design  protection  more  attractive  for 
individual designers and businesses, especially SMEs.  
Based  on  the  final  results  of  the  evaluation19,  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’20  that  it  will  revise  the  EU  legislation  on  design  protection,  following  the 
successful reform of the EU trade mark legislation. The Council adopted on 25 June 2021 
further conclusions on intellectual property policy21, urging the Commission to prioritise 
the  timely  presentation  of  a  proposal  as  soon  as  possible  on  the  revision  and 
modernisation  of  the  legislation  on  industrial  designs.  Furthermore,  in  its  supportive 

12 SWD(2020) 264 final, p. 15. 
13 EUIPO (2020) EUIPO Design Focus 2010 to 2019 Evolution. Retrieved from 
EUIPO_DS_Focus_Report_2010-2019_Evolution_en.pdf (europa.eu). Based on number of designs. 
14  Public  consultation  carried  out  between  18  December  2018  and  30  April  2019  in  the  context  of  the 
“Evaluation of EU legislation on design protection”, SWD(2020)264 final, Annex 2. 
15 Public consultation “Review of EU rules on industrial design (Design Directive)” carried out between 29 
April 2021 and 22 July 2021. See Annex 2 of this impact assessment report. 
16 Id p. 14, 15 and 71. 
17  Communication  from  the  Commission:  Better  regulation  for  better  results  -  An  EU  agenda, 
COM(2015)215, European Commission, 19 May 2015, p. 4. 
18 Council document 2020/C 379 I/01. 
19 SWD(2020) 264 final. 
20 COM(2020) 760 final. 
21 Council document 2021/C 247/02. 

6 

 
                                                           
Opinion on the IP Action Plan, the European Parliament stressed the need for revision of 
the design protection system after having been established 20 years ago22. 

2.  PROBLEM DEFINITION 

2.1.  What are the problems? 

Two  main  problems  were  identified  in  the  context  of  this  impact  assessment.  The  first 
and  most  important  one  relates  to  the  disruption  in  intra  EU  trade  and  barriers  to 
competition in some Member States with respect to repair spare parts. The second relates 
to the discouragement of businesses, in particular, SMEs and individual designers  from 
seeking  for  registered  design  protection  at  EU  or  national  level  due  to  the  high  costs, 
burdens and delays in obtaining protection and the limited predictability.  

The  evaluation  addressed  a  few  other  shortcomings  of  the  legislation  on  industrial 
designs  such as  in  relation  to  the  clarity of the  current  definition of  the eligible subject 
matter of protection or of the specific provisions on the relationship of design protection 
to  copyright.  These  other  shortcomings  are  intertwined  with  part  of  the  second  main 
problem,  notably  the  limited  predictability.  However,  given  the  rather  minor  impact  as 
confirmed also by the replies to the Second Public Consultation and the legalistic nature 
of  the  questions  involved,  these  shortcomings  are  covered  in  the  Annexes  part  to  the 
extent  appropriate  (see  Annex  10  on  subject-matter  of  protection  and  Annex  11  on  the 
relationship to copyright). In accordance with the principle of proportional analysis,  the 
present  impact  assessment  does  not  expressly  scrutinise  a  number  of  envisaged 
(technical) amendments either which aim at minor adaptations of existing provisions with 
little,  or  no  practical  impact,  or  that  are  straightforward  and  uncontentious  such  as  in 
relation  to  the  required  alignment  to  the  recent  trade  mark  reform.  Nevertheless,  an 
overview of the proposals for amending the existing legislation is provided in Annex 5.   

As far as the evaluation revealed indications of a possible underuse of design rights due 
to lack of awareness of the specific design protection regime and its benefits23, this has 
remained  out  of  scope  of  the  impact  assessment  as  a  very  wide  range  of  different  
awareness  raising  activities,  campaigns  and  trainings  (targeting  particularly  SMEs)  are 
already carried out or planned by the EUIPO24, including the EUIPO’s Academy and the 
European Observatory on Infringements of Intellectual Property Rights. In addition, the 
EU  IP  Helpdesk  offers  multiple  trainings  and  materials  to  help  European  creators  and 
innovators  to  make  the  most  out  of  their  IP  assets,  including  designs25.  To  the  extent 
necessary  and  appropriate,  the  Commission  shall  build  on  existing  other  initiatives,  in 
particular  related  to  SME  support,  to  further  promote  the  use  of  design  protection  and 
raise awareness about is benefits. 

22 Report on an intellectual property action plan to support the EU’s recovery and resilience, as adopted by 
the Legal Affairs Committee on 30 September 2021 (A9-0284/2021), para 32. 
23 SWD(2020) 264 final, p. 16, 17 and 71. 
24  For  details  on  ongoing  or  planned  new  awareness  raising  activities  see  Annex  12  and  EUIPO  Annual 
Work Programme 2021, MBBC_20_S10_2.4_Cover note.docx (europa.eu), p. 9, 12, 18, 24. As to related 
(new)  key  initiatives  to  increase  knowledge,  understanding  and  successful  use  of  IP  by  SME’s,  see  also 
EUIPO Strategic Plan 2025, SP2025_en.pdf (europa.eu), p. 36, 46 and 40. 
25 European IP Helpdesk (europa.eu). 

7 

 
 
                                                           
2.1.1.  Disruption of trade and competition in the spare parts area  

As  harmonisation  of  substantive  design  law  under  the  DDir  does  not  cover  the  area  of 
repair  spare  parts,  important  national  differences  remain  regarding  the  eligibility  of 
design  protection  for  visible  component  parts  used  for  the  purpose  of  repair  so  as  to 
restore  the  original  appearance  of  a  complex  product.  A  complex  product  refers  to  a 
product made up of multiple components, which can be replaced permitting disassembly 
and  re-assembly  of  the  product26.  On  one  hand,  at  EU  level,  the  CDR  excludes  in  a 
‘repair  clause’27  such  component  parts  from  protection.  On  the  other,  as  mentioned  in 
Section  1.2,  the  issue  remains  not  harmonised  under  the  DDir  and  Member  States  can 
choose whether to retain provisions extending protection to those component parts or to 
exempt them therefrom by means of a repair clause. 

As of September 2021, twelve (BE, DE, EL, ES, HU, IE, IT, LV, LT, LU, NL, PL) out of 
27 Member States provide for a repair clause exemption and hence have liberalised the 
spare parts market (see Annex 6 for detailed overview).28 Most recently, a repair clause 
was  inserted  into  the  German  Design  Act29,  which  entered  into  force  on  2  December 

26 Article 1(c) DDir and Article 3(c) CDR.  
27  Article  110(1)  CDR  reads:  “Until  such  time  as  amendments  to  this  Regulation  enter  into  force  on  a 
proposal  from  the  Commission  on  this  subject,  protection  as  a  Community  design  shall  not  exist  for  a 
design which constitutes a component part of a complex product used within the meaning of Article 19(1) 
for the purpose of the repair of that complex product so as to restore its original appearance.” 
28  Time.lex,  Queen  Mary  -  London,  Spark  Legal  Network  &  Indiville  (April  2016).  Legal  review  on 
industrial  design  protection  in  Europe,  2016,  p.  136;  Beldiman,  D.,  &  Blanke-Roeser,  C.  (2017).  An 
International  Perspective  on Design  Protection  of  Visible  Spare  Parts.  Springer,  p.  41;  SWD(2020)  264 
final, p. 65. 
29 New Section 40a DesignG. 

8 

 
 
                                                           
2020 and affects designs applied for registration after that date.30 In France, a partial and 
sectorial31 repair clause was promulgated on 24 August 2021 as part of a new law32 on 
combating  climate  change  and  strengthening  resilience  against  its  effects.  As  from  1 
January 2023, the sale of visible spare parts will be partially opened to competition there. 
As in Germany, this is going to affect new designs only. 

Design  protection  for  repair  spare  parts  conflicts  with  the  essential  role  and 
function  of  design  law.  The  purpose  of  design  law  is  to  protect  the  appearance,  the 
visible form of a product, not the product itself (granting an exclusive right to a particular 
shape but no product monopoly)33. The objective is to foster innovation in product design 
while  maintaining  competition  of  products.  Competitors  are  therefore  encouraged  to 
create  new,  sufficiently  distinguishable  designs  for  their  competing  products  which 
consumers  find  appealing.  This  is  achieved  without  interfering  with  the  competition  of 
products as such. The protection of the design of a watch, for instance, does not hamper 
competition  in  the  watch  market.  The  huge  variety  of  watch  designs  can  be  taken  as 
striking  example  of  how  design  protection  stimulates  product  competition.  Successful 
designs are those picked by the consumer who prefers for instance the smartly designed 
car or watch, and exclusive rights allow the designer to be rewarded for that design (i.e. 
“design premium” is awarded by the market based on consumer preferences). However, 
in the case of ‘must-match’ spare parts that need to exactly match the original parts to be 
replaced, the aftermarket leaves no room for consumers to exercise a choice and to prefer 
one design to the other. In such a case, the effect of design exclusivity corresponds to that 
of a product monopoly and is thus an unintended – from the ratio of the design acquis - 
excessive rent to the manufacturers of the original parts.34 In other words, the design law 
awards primary market ‘exclusivity’ rooted in the look of a vehicle, which is relative  – 
after all, inter-brand competition with other vehicles remains. It is, however, an arguable 
IPR protection over-reach to extend this into an absolute exclusivity over spare parts.    

Design  protection  for  repair  spare  parts  may  result  in  foreclosure  of  competition 
and “lock-in” effect. In markets with repair clause independent manufacturers are free to 
provide competing parts. This is different in markets where no repair clause  exemption 
exists currently (AT, BG, CY, CZ, DK, EE, FI, FR, HR, MT, PT, RO, SE, SI, and SK). 
The  holder  of  the  design  right  may  prevent  manufacturing,  importing,  or  selling  of 
similar  visible  spare  parts  by  potential  competitors.  This  is  problematic  when  the 
appearance  of  such  parts  is  dependent  on  the  appearance  of  the  complex  product  to  be 
repaired so that the exact reproduction  is necessary for restoring the complex product’s 
original  appearance  (so-called  “must-match  parts”).  As  the  spare  part  at  issue  must 
exactly  match  the  specifications  of  the  original  part  to  be  replaced  in  the  context  of 
repair, substitutability by alternative designs is not possible. In the case of cars, a fender, 
for  example,  that  differs  in  shape  from  the  original  one  is  useless  for  the  repair  of  the 
original  vehicle  and  therefore  unmarketable.  Any  competitor  wishing  to  enter  such 
market  needs  therefore  to  be  able  to  imitate  the  original  part.  However,  that  imitation 

30 For  more details see Jutta  Figge/Nadine  Kalberg, Die Ersatzteilklausel im Designrecht  – zur aktuellen 
politischen  Lage,  GRUR  2020,  p.  248  et  seq.;  Josef  Drexl,  Die  Reparaturklausel  im  Designrecht:  Eine 
wettbewerbs- und immaterialgüterrechtlich gebotene Reform, GRUR 2020, p. 234 et seq. 
31 Explicitly confined to the automotive sector only. 
32 Loi n° 2021-1104 du 22 août 2021. 
33 See also the European Parliament in its first reading position adopted on 12 December 2007 on the 2004 
proposal to introduce a repair clause (EP-PE_TC1-COD(2004)0203). 
34 Jens Schovbo and Graeme B. Dinwoodie, Design protection for products that are “dictated by function”, 
in: The EU Design Approach, A global appraisal, 2018, p. 156. 

9 

 
                                                           
would  constitute  an  infringement  of  design  rights  where  no  repair  clause  exemption 
exists.  Therefore,  right  holders  are  granted  a  genuine  monopoly  on  the  spare  parts 
aftermarket in the Member States concerned. That means that right holders can exclude 
entry and that repair shops and customers may be “locked” into purchasing such repair 
parts exclusively from them as original manufacturers or their suppliers. For example, in 
protected markets, a vehicle owner may not be able to buy the spare parts needed from a 
source  of  choice  (“freedom  to  repair”)  and  at  prices  kept  in  check  by  competition  but 
may become a captive consumer35. This is all the more valid as existing competition in 
the  primary  car  market  might  not  outweigh  uncompetitive  prices  in  the  aftermarket36. 
This  would  require  consumers  being  able  to  take  an  informed  decision  at  the  time  of 
purchase of the car as to the need for spare parts over its whole life-cycle. However, this 
is not the case, as such need does not only depend on the individual intensity of use but 
in  particular  on  the  probability  of  suffering  an  accident.  Such  perfect  foresight  is 
impossible for the user.  

The DDir applies to any sector where the replacement and repair of visible components 
of  complex  products  is  at  stake  and  which  therefore  would  be  affected  by  an  eventual 
harmonisation  at  European  level.  While  component  parts  can  be  found  in  virtually  all 
modern  products  and  devices,  the  largest  aftermarket  affected  is  that  of  the  automotive 
industry.  This  is  also  the  largest  group  that  responded  to  the  two  open  public 
consultations. 
There are 319 million vehicles in circulation on EU roads,37 and given also the low cost 
of repair compared to the price of a new car, the demand for damage repair is significant. 
According to Wolk After Sales38, in 2019, the market value of automotive visible spare 
parts in the EU was equal to EUR 16.3 billion39 and represented 17% of the total market 
value  for  all  automotive  spare  parts  in  the  EU.  Almost  51%  of  sales  (EUR  8.3  billion) 
took place in countries without a repair clause. This figure covers three segments: body 
parts  (with  the  market  value  of  EUR  9.7  billion),  auto  glass  (EUR  4.4  billion)  and 
lighting  (2.2  billion  EUR).  These  parts,  also  called  crash  parts,  are  typically  replaced 
because of collision and can benefit from design protection in the markets without repair 
clause.  

With 69% of total sales, vehicle manufacturers (VM) cover a large segment in the 
EU visible spare part market.  Such  market power may be used  in Member States 
without  repair  clause  to  the  detriment  of  consumers.  Mejer  and  Herz  (2020)40 
estimate  economic  impact  of  design  protection  on  the  prices  of  visible  spare  parts  in 
automotive  aftermarket.  They  rely  on  information  published  by  Insurance  Europe  in 
Spare  Parts  Price  Survey(s)  that  contains  the  pre-tax  prices  of  12  types  of  spare  parts 
(including lighting, auto glass and body parts) for 60 car models from 2001 to 2016 in 16 

35  According  to  the  CJEU  in  Joined  Cases  C-397/16  and  C-435/16  Acacia  v.  Audi  AG  and  Porsche, 
paragraph 50, the purpose of the repair clause contained in Article 110(1) CDR is to liberalise the market in 
replacement  parts  so  as  to  avoid  the  creation  of  captive  markets  in  certain  spare  parts  and  to  prevent  a 
consumer from being indefinitely tied to the original manufacturer of the goods for the purchase of external 
parts.  
36 Cf. Josef Drexl, supra note 22, p. 241. 
37  DG  Mobility  and  Transport  (European  Commission).  (2021,  September).  EU  transport  in  figures  - 
Statistical pocketbook 2021. https://op.europa.eu/s/sJBj  
38 Wolk After Sales (2021, September) Market structure of motor vehicle visible spare parts in the EU. 
39 This amount includes the share of accident repairs, including body work, car glass, lights at retail prices 
without VAT. Does not include the labour rate, paint job, and other work. 
40  Herz  & Mejer (2020) The  effect  of  design  protection  on  price  and  price  dispersion:  Evidence  from 
automotive spare parts. Retrieved from https://mpra.ub.uni-muenchen.de/104137/  

10 

 
                                                           
EU  Member  States  plus  Norway  and  Switzerland.  The  fact  that  spare  part  prices  are 
listed  by  car  model  allows  them  to  make  cross-country  price  comparisons  between 
exactly the same parts; for example, they are able to compare the price of a windscreen 
for a BMW 5 Series 530d 2993 cc 2011 between Germany and France in 2016. In order 
to  estimate  the  impact  of  design  protection  on  prices,  Herz  and  Mejer  (2020)  use  a 
the 
statistical 
differential  effect  between prices of identical  parts in  countries with  and without repair 
clause.  Results  show  that  in  the  absence  of  a  repair  clause  (competition)  prices  of 
identical parts are by 5–8% higher on average. 

technique  called  difference-in-differences 

that  allows 

to  measure 

Availability of alternatives would bring considerable benefits to consumers in terms 
of  price.  If  there  was  an  EU-wide  repair  clause  exemption,  EU  consumers  in  Member 
States currently without a repair clause would save between EUR 415 and 664 million 
annually on the purchase of visible automotive spare parts alone (see Annex 4 for details 
on  methodology).  These  savings  would  realise  if  a  new  repair  clause  was  binding  for 
both old (already registered) and new designs.  

Design protection may prevent the antitrust regime from achieving its full benefits 
for enterprises and consumers. The issue of extending design protection to spare parts 
has  an  impact  on  the  "Motor  Vehicle  Block  Exemption  Regulation"  (MVBER).41  The 
MVBER  provides  for  an  exemption  whereby  Article  101(1)  TFEU42  shall  not  apply  to 
vertical  agreements  relating  to  purchase,  sale  or  resale  of  spare  parts  and/or  repair  and 
maintenance services provided that some conditions are met. 43 One of these conditions is 
that  the agreement does  not  restrict the ability of spare parts  suppliers to  directly  serve 
the aftermarket.44  
The recent Evaluation of the MVBER45 points to two rigidities in the aftermarkets. First, 
Original Equipment Suppliers (OES) contractual arrangements with VM may prevent or 
hamper the former from supplying the aftermarket directly, in competition with parts sold 
to  the  VMs  and  then  resold  as  spare  parts.  Secondly,  agreements  between  VM  and 
authorised  repairers  may  oblige  or  incite  the  latter  to  purchase  most  of  their  supplied 
parts  directly  from  the  VM  network.  Design  protection  for  the  spare  parts  in  the 
aftermarket may render such behaviour legitimate. 

The  existing  market  fragmentation  in  the  EU  remains  a  problem  for  a  majority  of 
respondents,  as  highlighted  by  the  First  Public  Consultation.46  For  SMEs,  divergent 
approaches  of  the  Member  States  are  problematic  for  cross-border  operations  as  they 
create  legal  uncertainty  and  unpredictability.  For  right  holders,  difficulties  in 
efficiently protecting spare parts and enforcing their rights across the EU remain an issue. 
For  other  respondents,  including  design  users  and  independent  producers,  the  current 
patchwork  approach  leads  to  difficulties  with  and  high  cost  of  ensuring  compliance, 
agreeing on licences, setting out distribution networks and managing imports. 

Box 1: Legal uncertainty – practical example 

41 Commission Regulation (EU) No 461/2010 of 27 May 2010 on the application of Article 101(3) of the 
Treaty  on  the  Functioning  of  the  European  Union  to  categories  of  vertical  agreements  and  concerted 
practices in the motor vehicle sector, OJ L 129, 28.5.2010, p. 52-57. 
42 This provision prohibits anticompetitive agreements and concerted practices. 
43 Article 4, MVBER. 
44 Article 5(b), MVBER. 
45 Commission Evaluation Report on the operation of the Motor Vehicle Block Exemption Regulation (EU) 
No 461/2010, COM(2021)264 of 28/05/2021. 
46 It is to be recognised that all replies from industry stakeholders represent the automotive aftermarket. 

11 

 
                                                           
Legal  uncertainty  caused  by  current  fragmentation  can  be  best  illustrated  with  the  e-
commerce  case.  Currently,  in  order  to  protect  itself  against  infringement  claims,  an 
independent European manufacturer of body parts includes on its distribution website (in 
German)  a  note  stating  that:  no  original  spare  parts  are  offered  in  this  catalogue; 
numbers  of  original  spare  parts  are  given  for  reference;  parts  of  French  cars  that  are 
produced  by  PRASCO  Spa  (located  in  Italy  where  no  protection  is  offered)  cannot  be 
sold or offered for sale in France and/or in other countries where parts of French cars 
are protected by intellectual property law.47  

Fragmentation is optimal neither for independent producers and distributors (offering for 
sale into a Member State without repair clause would constitute infringement by vendor) 
nor for right holders. Also customers are insecure whether or not and in which Member 
States the purchase of certain spare parts is lawful and they are deprived in parts of the 
Union of choosing between competing spare parts. 

In its supportive Opinion on the IP Action Plan, the European Parliament acknowledged 
that  the  patchwork  of  conflicting  national  laws  created  fragmentation  in  the  internal 
market and legal uncertainty and therefore called on the Commission to include a repair 
clause in its future proposal for the purpose of avoiding distortions of competition.48  

electric 

bikes,  watches 

as  markets  where 

Beyond the automotive aftermarket, experts and stakeholders point to domestic electrical 
appliances  (e.g.  vacuum  cleaners),  electronic  devices  (e.g.  smartphones49),  sanitary 
appliances,  motorbikes, 
the 
availability/affordability  of  spare  parts  in  the  aftermarket  could  be  limited  due  to 
existence  of  design  protection50.    Due  to  lower  availability  of  reliable  sectoral  data 
predictions about price effects are less reliable. By definition, however, one could assume 
that  the  car  spare  parts  savings  constitute  a  lower  bound  of  overall  savings  across  all 
aftermarkets impacted by this design review.   
With  the  sustainable  product  policy  and  eco-design  policy51  aiming  to  make  products 
easier  to  repair,  it  is  therefore  important  to  assure  that  the  scope  of  design  protection 
leaves  consumers  with  the  choice  of  repair  and  does  not  constitute  an  obstacle  for  the 
repair markets to flourish. 

2.1.2.  Regulatory burdens 

Due to partly outdated procedures and suboptimal fees to be paid for the RCD as well as 
divergent rules at national level which are not yet aligned with those of the RCD system, 
businesses in the EU, and, in particular, SMEs and individual designers, are faced with 

47 The notice, retrieved from Prasco der Spezialist für Karosserieteile website on 10 September 2021 reads 
as  follows:  Die  in  diesem  Katalog  abgebildeten  Artikel  sind  keine  Originalteile.  Alle  angegebenen 
Referenz-  und  Originalnummern  dienen  nur  zu  Vergleichszwecken.  Die  von  PRASCO  Spa  produzierten 
und/oder verteilten Ersatzteile für französische Autos dürfen in Frankreich und in Ländern, in denen das 
französische  Recht  an  geistigem  und  gewerblichem  Eigentum  gültig  ist,  nicht  verkauft  und/oder 
wiederverkauft und/oder angeboten werden. 
48 Report on an intellectual property action plan to support the EU’s recovery and resilience, as adopted by 
the Legal Affairs Committee on 30 September 2021 (A9-0284/2021), para 33. 
49  Deloitte  estimates  the  value  of  global  repair  market  for  smartphone  to  be  USD  12  billion.  
https://www.statista.com/chart/20258/estimated-sales-of-smartphones-and-related-products-and-services/ 
50  Europe  Economics  (2015,  January).  The  economic  review  of  industrial  rights  in  Europe;  Hartwig,  H. 
(2016).  Spare  parts  under  European  design  and  trade  mark  law.  Journal  of  Intellectual  Property  Law  & 
Practice, 11(2), 121-129. 
51 https://ec.europa.eu/growth/industry/sustainability/product-policy-and-ecodesign_en  

12 

 
 
                                                           
unnecessary  hurdles  and  thus  extra  costs  when  using  the  system  and,  therefore,  to  a 
certain  extent  discouraged  from  applying  for  registered  design  protection  at  EU  or 
national  level.  In  addition,  the  recent  EU trade  mark reform  has  increased significantly 
the level of incoherence with the existing rules applicable to the RCD and its procedures. 
The resulting inconsistencies are causing friction in the EUIPO’s smooth running of its 
proceedings, in particular its workflows and back-office IT-landscape. As also raised by 
major IP associations, the created differences of rules are also detrimental for businesses 
active in both systems (EUTM and RCD), who rightly expect to encounter corresponding 
procedural  provisions  (including  in  relation  to  payable  fees)  when  not  justified  by  the 
specificities of the IP right at hand.52    

Outdated registration requirements of the RCD  

The  evaluation  highlighted  certain  elements  of  the  RCD  system,  which  create 
unnecessary administrative restrictions for its users and therefore discourage the uptake 
of  registered  design  protection.53  These  elements  concern  in  particular  the  outdated 
requirements  for  the  representation  of  designs.  They  do  not  allow  designers  to 
represent  their  designs  in  the  best  possible  fashion,  in  accordance  with  best  available 
technologies,  for instance by means  of dynamic  representations  showing  a design  from 
all  possible  angles.  Furthermore,  they  are  not  suitable  to  appropriately  reproduce  new 
types  of  designs  such  as  animated  graphical  user  interfaces  and  protected  other  new 
emerging designs. This adds to the legal uncertainty on the subject-matter of protection 
as noted above.  

Another  illustration  is  the  restriction  in  the  CDR  permitting  to  combine  a  number  of 
designs in one application (‘multiple application’) only if the products belong all to the 
same class of the Locarno Classification (‘unity of class requirement’). It was originally 
deemed necessary to limit the filing of multiple applications to designs belonging to the 
same  class  so  as  to  prevent  the  diminishing  of  registration  costs  by  filing  in  one 
application  designs  intended  for  all  sorts  of  products.  As  shown  by  the  evaluation,  the 
unity  of  class  requirement  however  unnecessarily  involves  administrative  burdens  for 
both the EUIPO and the users of the RCD system without much benefit.  

Box 2: Filing of multiple RCD applications – practical example 

An applicant would not be able to file in the same multiple application  ‘hairdryers’ and 
‘parts  of  hair  dryers’,  since  these  parts  belong  to  another  class  of  the  Locarno 
Classification.  In  order  to  seek  protection  for  the  design  of  these  parts,  the  applicant 
would have to file a separate RCD design application.  

This limitation therefore does not only increase the applicant’s costs and administrative 
burden,  but  it  also  prevents  the  applicant  from  appropriately  benefitting  from  the  bulk 
discounts offered when seeking to register the designs.  

The evaluation further showed that the recent trade mark reform increased the number of 
inconsistencies  between  EU  Trade  Mark  (EUTM)  proceedings  and  RCD 
proceedings54.  For  example,  design  applicants  cannot  rely  on  continuation  of 
proceedings (in case a user missed certain types of time-limits) or revocation of decisions 
(in  case  of  obvious  mistakes  made  by  the  EUIPO)  which  are  available  in  trade  mark 

52 SWD(2020) 264, Section 5.7, p. 70. 
53 SWD(2020) 264, p. 71. 
54 SWD(2020) 264, p. 70. 

13 

 
                                                           
proceedings. As a consequence, users may mistakenly rely on certain safety nets which 
they are used to when dealing with EUTM proceedings which are not available when it 
comes  to  RCDs.  It  is  detrimental  for  businesses  active  in  both  systems,  who  expect  to 
encounter corresponding procedural provisions when not justified by the specificities of 
the  IP  right  concerned.  In  addition,  this  is  causing  friction  in  the  EUIPO’s  smooth 
running  of  its  proceedings,  especially  in  terms  of  its  workflows  and  back-office  IT 
landscape. 

 Sub-optimal fee structure and levels 

The amounts of fees payable to the EUIPO in respect of the registration of RCDs are laid 
down in  the Fees  Regulation (EC) No 2246/2002. An  adjustment of those fee  amounts 
can only be effected by amending that Fees Regulation. The fees for RCDs have not been 
revised since the introduction of the Community design system. This means that in real 
terms they are now 26% lower than in 200255. On the other hand, the fees for EU trade 
marks  have  been  adjusted  downwards  several  times,  with  very  substantial  cumulative 
decrease.  In  the  context  of  the  recent  trade  mark  reform,  the  co-legislators  deemed  it 
appropriate to set the amounts of EU trade mark fees directly in the basic EU Trade Mark 
Regulation (EU) 2017/100156 (‘EUTMR’), given their essential importance57, so that the 
original Regulation on EU trade mark fees58 was repealed. Apart from adjustments to the 
fee  levels,  changes  were  made  to  the  fee  structure  such  as  by  abolishing  the  separate 
registration  fee  (in  addition  to  that  for  the  application)  and  the  fee  for  the  transfer  of  a 
EUTM.  

It is  a fundamental objective of the  CDR  that the procedure for obtaining a RCD 
should  present  the  minimum  cost  and  difficulty  to  applicants,  so  as  to  make  it 
readily accessible to SMEs as well as to individual designers59.  

However, in terms of the fee structure, given the short time (in case of so-called fast track 
registration in fact only 2-3 days) from filing to registration and publication of an RCD 
with  no  deficiencies,  the  current  distinction  between  registration  (EUR  230)  and 
publication (EUR 120) fee causes unwarranted burdens in the fee administration for the 
users of the RCD system and the EUIPO. 

Furthermore,  as  regards  the  levels  of  fees  to  be  paid  to  the  EUIPO,  larger  entities 
currently tend to benefit from a less costly access to RCD protection, compared to 
SMEs and individual designers. Where larger companies tend to protect more designs 
than  smaller  companies  and  individual  designers,  they  can  benefit  more  from  the  bulk 
discount offered to multiple applications. That is due to the amount of fees to be paid for 
the registration of a RCD being lower from 50% up to 80% the more RCDs are filed at 
the same time in a multiple application60.  

55 The  cumulative inflation  from 2002 to 2020 for the  EU27 amounted to 36% (Eurostat, HICP  - annual 
data (average index and rate of change) [prc_hicp_aind]). Meaning that present value of EUR1 from 2002 
is EUR 0.74. 
56  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.  
57 Recital 39 of the EUTMR. 
58  Commission  Regulation  (EC)  No  2869/95  on  the  fees  payable  to  the  Office  for  Harmonisation  in  the 
Internal Market (Trade Marks and Designs), OJ L 303, 15.12.1995, p. 33. 
59 Recital 24. 
60 The basic fee to be paid for the registration of a single RCD is EUR 350, taking the actual registration 
fee (EUR 230) and publication fee (EUR 120) together. Bulk discounts are available when filing more than 
one  RCD in a  multiple application. For the registration of  each additional design  from  the second to the 

14 

 
                                                           
 
The  option  to  combine  a  number  of  designs  in  one  multiple  design  application  and  to 
benefit  from  a  bulk  discount  was  introduced  with  the  particular  aim  of  facilitating  the 
filing of applications for those industry sectors which develop large numbers of possibly 
short-lived  designs  over  short  periods  of  time  of  which  only  some  may  be  eventually 
commercialised61.  According  to  EUIPO  statistics,  in  2019,  for  natural  persons  as  filers 
the  average  number  of  designs  per  application  was  2.34,  for  legal  persons  3.63, 
corresponding  to  an  average  fee  paid  per  design  registration  and  publication  of 
respectively EUR 250 and EUR 223 (12% higher for natural persons). This disadvantage 
is not only considerable when comparing the costs of a single application with that of the 
fees  to  be  paid  for  additional  designs,  but  due  to  the  progressive  structure  of  the  bulk 
discounts  the  difference  in  filing  fees  become  even  more  striking  when  more  than  ten 
designs are included in a multiple application. All this ultimately also means that single 
design filers (that is those that file an application for the registration of only one RCD) 
are  actually  cross-subsidising  multiple  RCD  filers.  Moreover,  the  distinction  of  the 
available  (bulk)  discounts  in  two  different  brackets  (second  to  the  tenth  design,  and 
eleventh  design  forward),  which  also  applies  for  the  payable  fees  in  case  of  requesting 
deferment of publication of the registration62, contributes to making the fee structure non-
transparent  and  complex  to  the  disadvantage  especially  of  SMEs  that  are  not  usually 
supported by adequate legal expertise, and entailing administrative burdens in particular 
also for additional payments and reimbursements when individual designs of a multiple 
application do not proceed to registration.   

As regards renewal fees, the Fees Regulation for the RCD provides an escalating fee for 
each  renewal.  In  contrast  to  the  bulk  discount  provided  at  the  moment  of  application, 
there is no such discount on renewal. Some respondents in particular to the First Public 
Consultation were of the view that the renewal fee amounts are too high, especially for 
SMEs and individual designers, and that they should not increase each time a registered 
design is renewed. In addition, they criticised that the renewal fee applies to every single 
design contained in a multiple application without the bulk discount being available after 
registration.  However,  that  latter  view  does  not  take  account  of  the  above-mentioned 
special rationale for bulk discounts being granted at filing stage (to facilitate the testing 
of designs in the market). Furthermore, higher renewal than registration fees appear to be 
perfectly justified by the need of encouraging the non-renewal of not utilised designs. It 
is  mainly  also  for  that  reason  that  most  respondents  to  the  Second  Public  Consultation 
(41%) were supportive of lowering the basic fee for the initial five years’ registration of a 
Community design rather than reducing renewal fees (24%) in order to facilitate access 
to design protection for SMEs and individual designers.  

Diverging procedural rules at national level 

The  evaluation  revealed  that  the  legal  environment  in  the  field  of  industrial  designs 
remains very heterogeneous in spite of the partial harmonisation of national laws dating 
back  to  late  1990s.  Harmonisation  imposed  by  the  DDir  only  focused  on  a  restricted 
number  of  substantive  rules  that  were  then  considered  to  most  immediately  affect  the 

tenth design filed in a multiple application, a basic fee of EUR 175 (EUR 115 registration fee plus EUR 60 
publication  fee)  has  to  be  paid,  and  a  basic  fee  of  EUR  80  (EUR  50  registration  fee  plus  EUR  30 
publication  fee)  for  each  additional  design  from  the  eleventh  design  onwards.  This  corresponds  to  a 
discount of 50% and almost 80% respectively. 
61 Recital 25 of the CDR. 
62 The fee for deferment of publication is EUR 40, the additional deferment fee for each design from the 2nd 
to the 10th design is EUR 20, and for each additional design from the 11th design onwards EUR 10. 

15 

 
                                                                                                                                                                            
functioning  of  the  internal  market63  (excluding  in  particular  the  controversial  issue  of 
spare  parts  protection  as  addressed  in  Section  2.1.1).  Formal  requirements  and 
procedures were not covered at all. Moreover, the CDR was enacted three years after the 
DDir,  which  means  that  at  the  time  the  DDir  came  into  being  there  was  no  'common 
benchmark' against which the efficiency of national proceedings could be measured. By 
now, however, the procedures followed by the EUIPO have been in place for almost 20 
years.  They  are  generally  regarded  as  meeting  business  needs  and  expectations,  in 
particular in terms of timeliness and user-friendliness64. As a result, the current landscape 
of EU design law is still characterised by a wide divergence between national rules and 
procedures, both among themselves and in relation to the rules and procedures applied by 
the EUIPO. Although the EUIPO in cooperation with national IP offices has established 
converged  practices  within  the  framework  of  the  European  Trade  Mark  and  Design 
Network (EUIPN)65, certain issues were out of scope and not harmonised, as they would 
require changes to the national laws.  

As shown by the First Public Consultation66, there is a broad agreement among users of 
the design protection systems in Europe that the present level of approximation between 
national  design  laws,  as  well  as  with  the  RCD  system,  has  not  been  sufficient.  IP  user 
organisations  unanimously  stated  that  further  harmonisation  of  national  design  law,  in 
particular  with  regard  to  procedural  issues  is  needed.  In  response  to  the  Second  Public 
Consultation, the (outstanding) harmonisation of registration procedures also ranked high 
in terms of suitable measures to raise the usage of design protection. At a political level, 
the  Council67  called  for  the  revision  of  the  industrial  designs  system  in  the  Union  to 
address  and  consider  measures  aimed  at  supporting  the  complementary  relationship 
between  the  Community,  national  and  regional  design  protection  systems,  as  well  as 
efforts to reduce areas of divergence within the design protection system in the Union. In 
addition,  the  European  Parliament  called  for  further  harmonisation  of  the  design 
application  and  invalidity  procedures  in  the  Member  States  and  suggested  that  the 
Commission also thinks about aligning the DDir and CDR with a view to creating greater 
legal certainty68.  
As assessed in detail and supported by evidence in the evaluation69, the existing gaps in 
harmonisation  affect  a  variety  of  procedural  areas.  The  following  important  examples 
illustrate practical problems caused by the non-harmonisation of rules and practices. 

(a) Means and requirements of design representation 

63 Cf. Recital 5 of the Preamble to the DDir (similar to the limited scope of harmonisation imposed by the 
original Trade Mark Directive 89/104/EEC of 21 December 1988).  
64 For details, see SWD(2020) 264, p. 51 and 114.  
65  According  to  Article  151(1)(c)  of  Regulation  (EU)  2017/1001  of  the  European  Parliament  and  of  the 
Council  of  14  June  2017  on  the  European  Union  trade  mark,  the  EUIPO  is  tasked  with  promoting 
convergence of practices and tools in the fields of trade marks and designs, in cooperation with the central 
industrial  property  offices  in  the  Member  States,  including  the  Benelux  Office  for  Intellectual  Property. 
Article  152  of  that  Regulation  provides  for  a  legal  and  financial  framework  for  cooperation  to  promote 
convergence  of  practices  and  tools.  For  the  activities  of  the  EUIPN  see  European  Union  Intellectual 
Property Network (tmdn.org) 
66 For details, see SWD(2020) 264, p. 123, 124. 
67 See Conclusions on intellectual property policy and the revision of the industrial designs system referred 
to in footnote 1, paragraph 21, first and fourth bullet point.  
68 Report on an intellectual property action plan to support the EU’s recovery and resilience, as adopted by 
the Legal Affairs Committee on 30 September 2021 (A9-0284/2021), paras 32 and 35. 
69 SWD(2020) 264, p. 36 to 47. 

16 

 
                                                           
The  requirements  of  national  IP  offices  concerning  representations  of  a  design  in  an 
application for registration are (like in the case of the RCD) not yet aligned to the digital 
age,  and  differ  in  addition  significantly.  The  First  Public  Consultation  showed  that 
among the aspects not covered by the DDir, those requirements were considered most in 
need of common modernisation and harmonisation. This is confirmed by a benchmarking 
study  conducted  in  the  EUIPN  as  part  of  the  convergence  programme  on  graphic 
representations of designs. The  representation  requirements relate, among others, to the 
number  and  types  of  viewings,  the  use  of  appropriate  disclaimers,  the  neutral 
background70  and  the  acceptance  of  computer-animated  representations  and  3D  digital 
representations. While the EUIPN has so far managed to converge practices on the use of 
disclaimers,  types  of  views  and  the  representation  of  designs  in  a  neutral  background, 
further  convergence  of  practices  has  not  been  possible  partly  due  to  (divergent)  legal 
constraints  in  the  Member  States71.  These  legal  constraints  and  divergences  prevent 
applicants  from  both  using  best  available  technology  for  representing  their  designs  and 
claiming  convention  priority72  by  using  the  same  material  for  subsequent  applications 
across jurisdictions. This creates additional costs for them and may lead to national rights 
of different scope for the same design.  

Priority can only be claimed for the same previous application. Different national formal 
representation requirements result in diverging design applications, which in turn puts in 
doubt whether they represent the same design and priority can be claimed.  

Box 3: Means and requirements of design presentation – practical example 

If  designer  X  applies  for  a  design  right  in  France,  it  would  be  allowed  to  submit  an 
unlimited number of design views. If X wants to subsequently claim priority on the basis 
of  that  right  when  applying  for  an  RCD,  X  can  merely  file  a  maximum  of  7  design 
views. On the other side, while national IP Offices usually allow applicants to represent 
their designs by static graphic or photographic reproduction only, at the EUIPO at least 
3D  digital  representations  are  admitted,  even  though  merely  as  an  additional  technical 
means of viewing the design73. Should however it become possible to represent a design 
by  a  video  file  at  one  of  the  national  IP  Offices  for  example  without  that  this  is  also 
made  possible  at  the  EUIPO,  the  applicant  would  again  not  be  able  to  use  the  same 
material for subsequent applications at national and EU level based on priority. 

 (b) Option and conditions for filing a multiple application 

The option of combining a number of designs in one (multiple) application is available in 
most but not all Member States. To the extent this is the case, the conditions are the more 
not  the  same.  Like  the  RCD  regime,  most  national  laws  still  require  that  the  designs 
applied  for  belong  to  the  same  class  of  the  Locarno  Classification.  Exceptions  are 
Germany  and  the  Benelux  countries.  The  maximum  number  of  designs  that  can  be 

70 Representing a design in a neutral background is of key importance to avoid hampering automated image 
searches. Divergences of national rules therefore make it more difficult to develop common IT tools in the 
EU. 
71  For  details  see  Common  Communication  on  convergence  on  graphic  representations  of  designs,  May 
2018, Common_communication7_en.pdf (europa.eu). 
72  A  priority  date  is  used  to  establish  the  precedence  of  rights,  and  has  crucial  importance  for  assessing 
novelty  of  a  design.  Applicants  can  rely  on  ‘convention  priority’  within  the  meaning  of  the  Paris 
Convention for the Protection of Industrial Property (1883) to gain a right of priority of six months from 
the date of filing of the first application in any State party to that Convention. 
73 It does not replace the conventional static views. See Article 36(5) of the Regulation and Article 4 of the 
Implementing Regulation. 

17 

 
                                                           
included in a multiple application also varies across the EU. Most interviewees from IP 
offices  considered  the  unity  of  class  requirement  not  helpful  or  no  longer  necessary. 
Different  rules  make multiple applications burdensome and costly for businesses in  the 
context  of  multi-jurisdictional  filings.  88%  of  all  respondents  to  the  First  Public 
Consultation thus saw need of harmonisation. 

Box 4: Filing of multiple applications – practical example  

Where  designer  X  can  apply  for  a  multiple  application  in  Germany  for  designs 
belonging to different classes, X would not be able to reuse the same materials in most 
other member states and at the EUIPO that only allow multiple applications for designs 
belonging  to  the  same  class,  but  would  have  to  file  more  than  one  application  to  seek 
protection  for  the  same  designs.  This  many  not  only  lead  to  extra  filing  fees,  but  as 
mentioned above, not filing exactly the same material may also lead to priority issues.  

(c) Option and length of deferment of publication  

Many  but  not  all  Member  States  have  provisions  on  deferred  publication  of  a  design 
registration74.  Such  a  deferral  helps  prevent  copycats  while  a  product  is  launched.  The 
available period of publication deferral varies significantly from 6 to 30 months75. Most 
respondents to the public consultation (76%) are in favour of harmonisation of the rules 
on deferment of publication, and some respondents suggest making the option to request 
a  deferral  mandatory  at  national  level.  Different  national  rules  create  legal  uncertainty, 
extra  costs  in  managing  design  portfolios,  and  an  uneven  level  playing  field  for 
businesses. 

Due  to  the  different  deferment  periods,  a  design  applicant  wanting  to  make  use  of  this 
option  in  several  Member  States  can  only  benefit  of  the  minimum  deferment  period 
available if these countries offer this possibility at all.  

Box 5: Deferment of publication – practical example 

If  company  X  wants  to  prevent  competitors  in  Slovenia  and  the  Czech  Republic  from 
knowing which product X is about to launch on the market, X can ask for deferment of 
publication in both countries. However, X will have to bear in mind that the period for 
deferral  in  Slovenia  is  18  months  shorter  than  in  the  Czech  Republic.  Therefore,  after 
the  shortest  period,  i.e.  12  months  in  the  case  of  Slovenia,  application  of  X  will  get 
published  and  the  competitor  in  the  Czech  Republic  may  become  aware  of  X’s 
Slovenian design application. But also for competing undertakings that are merely active 
in one territory this lack of harmonisation may be detrimental,  for instance in the case 
that  company  X  does  not  have  the  possibility  to  request  for  deferment  of  publication, 
while company Y can avail of this option for 30 months and thus has an advantage over 
the competitor. 

 (d) Extent of substantive examination 

In contrast to the EUIPO and the large majority in other Member States, five national IP 
Offices still examine ex officio whether a design applied for meets the requirements of 
novelty  and  individual  character.  These  are  the  offices  in  the  Czech  Republic,  Finland, 

74 The option of deferring the publication serves avoiding that the normal publication following registration 
of a design could in some cases destroy or jeopardise  the  success of a commercial operation involving a 
design (Recital 26 CDR).  
75 The  period of deferral is 6 months  in Denmark and Sweden; 12  months in the Benelux countries, and 
Slovenia; 18 months in Austria; and 30 months in the Czech Republic, Spain and Lithuania. 

18 

 
                                                           
Hungary, Romania and Slovakia.  While the benefit of that examination is quite limited 
for  design  applicants,  given  that  it  only  extends  to  prior  registered  designs  (without 
coverage  of  non-registered  designs),  it  negatively  affects  the  overall  duration  of 
registration proceedings in the offices concerned, causes extra burdens and costs for both 
IP offices and businesses seeking design protection at national level76, and prevents them 
from enjoying a level playing field compared to the Community design. On average time 
to register design in those five Member States was 2.1 times longer in 2019 than in the 
remaining countries.77 Around 750 to 1000 applications annually are affected78. 

Box 6: Extent of substantive examination – practical examples 

While  company  X  would  be  able  to  get  a  registration  in  Spain  within  a  few  days, 
company  Y in  Hungary  would need to  wait at  least  three months before  being  able to 
enforce  its  design  right79.  This  puts  competitors  in  these  countries  in  an  unequal 
position.  If  company  X  needs  to  enforce  its  design  right  urgently  and  has  no  time  to 
wait,  it  may  decide  to  apply  for  an  RCD  as  this  would  cover  the  whole  EU  and  be 
registered within a few days. Not only does this lead to extra filing costs, X also runs the 
risk that priority may not be successfully claimed due to different formal requirement as 
to the maximum number of views, being 7 for RCDs and 100 in Hungary for electronic 
filings.  As  a  consequence,  the  RCD  may  be  invalidated  due  to  lack  of  novelty  and 
individual  character  vis-à-vis  the  previous  Hungarian  filing  and  the  extra  costs  for  the 
filing of the RCD were thus made in vain. 

 (e) Administrative invalidity procedures 

While  at  Union  level  and  in  part  of  the  Member  States  proceedings  to  invalidate  a 
registered  design  can  be  brought  directly  before  the  EUIPO  and  national  IP  offices80 
respectively,  in  other  Member  States  proceedings  to  invalidate  a  registered  national 
design may only be brought before a judicial body81.  

Applications to court for injunctions or declarations of invalidity can add to the overall 
transaction  costs  involved  in  obtaining  and  maintaining  a  registered  design  in  the  EU. 
The  results  from  both  the  First  and  the  Second  Public  Consultation  clearly  show  that 
harmonisation  of  the  approach  is  desired.  The  absence  of  administrative  invalidity 
procedures in some Member States also hinders a further harmonisation of practices and 
tools as developed in the EUIPN. 

76 Even deploying AI-based search tools makes it impossible for novelty examination to  be exhaustive, as 
any earlier design in the world (registered or not) can be novelty destroying. Benefits are thus of limited 
value for applicants. 
77 Based on EUIPO data, in 2019 simple average time from application to registration of a design in five 
Member States with prior examination was 168 days, while in 19 others for which data was available – 80 
days. The difference was even higher in preceding years. 
78 In CZ these would affect between 150 and 250 applications each year, in Finland between 100 and 140  , 
around 130 in Hungary , from 100 to 170 in SK , between 270 and 370 in RO (based on annual reports of 
the respective IP officies).  
79 In case no deficiencies are found. If there are deficiencies in the application the average time it takes for 
an application to be registered is 12 months for Hungary and 38 days in Spain.  
80 According to data obtained through a targeted questionnaire prepared by the Commission and addressed 
to  national  IP  Offices  in  2019  (IPO  Questionnaire),  office-based  invalidity  procedures  are  currently 
available in Austria, Bulgaria, Croatia, the Czech Republic, Denmark, Germany, Hungary, Ireland, Poland 
and Portugal.  
81 According to the IPO Qurestionnaire, a judicial procedure  with the competent court to get a registered 
design  invalidated  is  required  in  the  Benelux  countries,  Cyprus,  Estonia,  Finland,  France,  Greece,  Italy, 
Latvia, Lithuania, Romania, Slovenia, Spain, and Sweden. 

19 

 
                                                           
Moreover, litigation costs for pursuing infringement cases/invalidity cases is considered 
as one of the top three costs of having a design. Also the clear majority of respondents to 
the  Second  Public  Consultation  stressed  the  importance  of  introducing  quick  and 
inexpensive invalidity proceedings in  all the national  IP offices and see  no reason why 
the situation for designs should differ from that of trade marks82. The non-availability of 
office-based  proceedings  in  a  part  of  the  Union  makes  the  design  system  in  the  EU 
particularly burdensome and expensive for SMEs and individual designers to go against 
registered designs not meriting protection in these countries. 

In  particular,  the  costs  for  the  required  legal  representation  by  lawyers,  including 
procurators,  which  normally  exceed  those  involved  by  the  representation  through  trade 
mark and design attorneys admitted to act before national IP offices (not least due to the 
greater  legal  complexity  involved  in  court  proceedings),  is  a  reason  for  SMEs  or 
individual designers not to go to court. In addition, the court fees are usually higher than 
the  fees  for  invalidity  proceedings  requested  by  national  offices  being  on  average  285 
EUR83. Backlogs  at courts may also additionally delay the rendering of final decisions. 
The result is that in countries with administrative invalid proceedings the hurdle to start 
such proceedings is lower and the register is more likely to be cleaned of invalid designs. 
It  also  means  that  in  countries  where  competitors  can  get  a  registered  design  declared 
invalid  only  through  complex  and  costly  court  proceedings,  the  economic  costs  of 
registering invalid designs are “passed on” to them. 

Box 7: Invalidity proceedings – practical example 

Company X intends to put a new design product into the whole EU market. However, X 
is concerned that the product could infringe both a registered trade mark and design in 
Finland. If X is of the view that neither of these registrations merit protection and wants 
to  have  them  cancelled  by  the  competent  authorities,  it  would  have  to  proceed 
differently. While for cancelling the registered trade mark X could file an application for 
a declaration of invalidity before the Finnish Patent and Registration Office, paying an 
official fee of EUR400 if done electronically, X would have to initiate judicial invalidity 
proceedings before the competent Market Court  in Finland to get the registered design 
declared invalid, paying a much higher official fee of EUR2050 as legal entity.  

Conclusion 

The  non-harmonisation  of  procedures,  including  the  resulting  limited  convergence  of 
practices,  have  a  series  of  significant  adverse  consequences  for  all  businesses  and 
individual  designers.  This  applies  both  to  applicants  active  in  different  markets  in 
Europe84  and  users  of  a  single  national  system.  Indeed,  the  differences  between  the 
existing  regimes,  for  example,  the  availability  of  certain  procedures  and  tools,  legal 
uncertainty as well as speed of registration, lead to an uneven level playing field which is 
to  the  detriment  of  all  users  of  the  European  design  system,  regardless  of  the 
geographical  scope  of  design  protection  they  seek  to  obtain.  As  a  result,  a  company, 

82 Following the trade mark reform, Member States are required to provide for office-based procedures for 
the  revocation  and  declaration  of  invalidity  of  a  registered  trade  mark  (Article  45  of  Directive  (EU) 
2015/2436 of 16 December 2015 of the European Parliament and of the Council to approximate the laws of 
Member States relating to trade marks). 
83 Fees range from EUR 77,70 in Czech Republic to EUR 550 in Austria. Data taken from the IPO survey.  
84 As also confirmed by the responses to the Second Public Consultation, in particular SMEs partly apply 
first for the registration of their designs at national level to save costs before applying also for protection in 
the  form  of  an  RCD  based  on  so-called  convention  priority,  or  make  use  of  several  national  systems  in 
parallel to register a number of national designs, as part of their company's marketing strategy. 

20 

 
                                                           
planning  its  design  strategy,  already  faces  a  multitude  of  unevenly  regulated  regimes, 
which present applicants with different degrees of accessibility, difficulty, predictability 
and speed in obtaining design protection leading to: higher costs and delays; underuse of 
(part of) the design systems and distortion of competition.  

First,  there  is  a  direct  increase  in  costs  for  cross-border  filers.  Due  to  divergent 
procedures applicants cannot use the same material across jurisdictions, have to manage 
portfolios  of  rights  of  different  scope  and  be  aware  of  the  specificities  of  the  different 
protection systems. As a consequence, they are obliged to: (a) increase in-house expertise 
so  as  to  be  in  a  position  to  internalise  the  knowledge  necessary  for  effectively  dealing 
with  the  various  aspects  of  the  system  in  all  Member  States,  (b)  seek  expensive 
professional advice, often in the form of an international network of external consultants, 
especially  when  the  issues  involved  require  local  legal  expertise,  and  (c)  develop  and 
maintain overcomplicated data management tools in order to manage its designs portfolio 
efficiently, taking due account of the divergent rules applicable.  

Second,  the  different  standards  applicable  in  different  jurisdictions  lead  to  an 
increased  danger  of  forum  shopping,  since  companies  are  often  tempted  to  use  one 
system  instead  of  another,  not  on  the  basis  of  their  marketing  needs,  but  rather  on  the 
basis of convenience criteria like the ease or speed with which design registration can be 
obtained in a particular territory. For example, it may be known among design users that 
the examination practice is more rigorous in one Member State than in  another (as  e.g. 
not  including  the  assessment  of  prior  art),  and,  consequently,  decide  to  obtain  design 
protection at the latter IP office (or, alternatively, at the EUIPO, which for example does 
not examine prior art ex officio either). As a possible consequence thereof, the situations 
of some national IP offices might become unsustainable which would be to the detriment 
of  individual  designers  and  SMEs  that  apply  in  one  or  two  member  states  only  or  first 
obtain design protection at national level before deciding to apply elsewhere on the basis 
of  convention  priority.  Moreover,  it  would  endanger  the  fundamental  principle  of 
coexistence (including harmonious complementarity and free choice) between RCD and 
national  design  systems,  which  is  so  much  supported  by  stakeholders  (as  in  the  trade 
mark field), could be put at risk.  

Third,  the  above  mentioned  deficiencies  also  distort  the  level  playing  field  for 
companies,  with  further  negative  consequences  on  the  competitiveness  of  EU 
companies and the competiveness of the EU as a whole. It should also be noted that 
the  above  effects  are  more  acute  for  SMEs  and  individual  applicants,  even  if  active  in 
only one or two markets and thus are more impacted by less efficient national protection 
systems. To the extent that they are active on several markets, they have less resources to 
hire expensive teams of international professional consultants to cater for their  different 
filing  needs.  This  leads  to  discrimination  and  artificial  barriers,  since  small  companies 
find it increasingly difficult to compete with big multinationals. 

2.2.  How will the problems evolve? 

2.2.1.  Single market and competition in spare parts market 

Figure  2.1  illustrates  the  structure  of  the  automotive  aftermarket.  Competition  in  the 
European  aftermarket  of  auto  parts  would  continue  to  occur  across  two  channels: 
authorised and independent. The former includes vehicle manufacturers (VM) and their 
affiliated repair shops. Spare parts distributed in this channel are manufactured either by 
the VM themselves or by original equipment suppliers (OESs) that supply the parts for 
the vehicle assembly. The independent aftermarket includes OES that supply spare parts 

21 

 
under  their  own  brands  and  independent  suppliers  that  do  not  supply  parts  for  vehicle 
assembly  i.e.  have  no  formal  contractual  arrangements  with  vehicle  manufacturers 
(hereafter  “non-OES”).  Suppliers  in  this  independent  market  rely  on  wholesale 
distributors to deliver parts to repair shops. 

Figure 2.1. Aftermarket separated into authorised and independent channels 

Source: Exhibit 1 in BCG, CLEPA and Wolk After Sales (March, 2021) At the crossroads: The European 
Aftermarket 2030. 

Producers 

In  Member  States  without  a  repair  clause,  VM  would  continue  prohibiting  the 
production, putting on the market and offering for sale of identical parts by independent 
manufacturers on the basis of their national design rights. 

Location of production: Non-OES continue foregoing production in these markets.  The 
evidence  point  that  this  is  indeed  the  case  as  fewer  production  sites  are  owned  by  the 
non-OES  parts  producers  in  markets  without  a  repair  clause.85  OES,  on  the  contrary, 
would  keep  production  sites  often  located  in  the  protected  markets.  This  is  because  of 
geographical proximity of OES and VM car assembly sites. 

Putting on the market: OES’ contractual arrangements with VM may continue to prevent 
or hamper the former from supplying the aftermarket directly. Figure 2.2 shows that this 
is indeed the case for the segment of body parts where there is very limited presence of 
OES brands  but  not  for  lighting  and auto  glass  segments  where  competition from  OES 
brands is much stronger as reflected in higher market shares. Still, OES would continue 
to be barred by VM from directly supplying lighting and glass segments in MS without a 
repair clause; the distribution of their spare parts production shifts exclusively to the VM 
resulting  in  undiversified  customer  portfolio.  Finally,  even  if  the  OES  are  allowed  to 
market  spare parts in  the EU aftermarkets,  they  might remain prohibited to produce on 
EU  territory  parts  supposed  to  be  exported  to  third  countries  (e.g.  Australia)  where  no 
design protection of spare parts exists. 

Figure 2.2. Market shares by segment and origin of the brand (whole EU, 2019) 

85 Wolk After Sales (2021), supra note. Section 3.1.2. Purchasing criteria. 

22 

 
 
                                                           
TOTAL*

Body

Lighting

Auto Glass

0%

20%

40%

60%

80%

100%

OEM OES

IAM Other

Note(s):  (*)  Total  value  reflect  three  market  segments:  body,  lighting  and  auto  glass.  The  production  of 
body panels was traditionally a core activity of VM. Metal body panels are still mostly produced by the 
OEM  whereas  plastic  panels,  such  as  bumpers,  are  fully  sourced  to  OES  on  the  basis  of  exclusivity 
contracts.  Still,  OES  do  not  supply  parts  with  their  own  logo  to  the  aftermarket  in  parallel.  The  only 
competition in this segment comes from non-OES who hold 22% of the market. 
Source: VVA et al. (2021) Tables 16-18. 

In Member States  with  a repair clause, the aftermarket would be sustained but  as  these 
markets would not comprise the entire internal market, it will continue to suffer from the 
lack  of  economies  of  scale.  Limited  access  to  EU-wide  market  with  the  growing 
technological  complexity  of  spare  part  production  will  make  it  harder  for  independent 
producers to cover increasing fixed cost of bringing visible spare parts to the market. 

In Member States with a repair clause, independent producers (non-OES) will continue to 
compete equally with OES. They would be still, however, at disadvantage as they cannot 
benefit  from  the  economies  of  scale  offered  by  a  single  market.  They  would  not  be 
allowed  to  place  their  products  in  16  Member  States  that  represent  49%  of  the  visible 
spare  part  market  in  the  EU.  Since  they  do  not  have  supply  contracts  with  VMs  they 
would  keep  struggling  for  higher  market  volumes  to  recuperate  fixed  costs  of 
investments i.e. investments into product development and production lines. 

The cost of reverse engineering86 is expected to increase in the future. This is driven by 
the  increased  use  of  composite  materials  in  the  production  of  vehicles.  Composite 
materials  reduce  weight  of  the  car  increasing  their  performance  and  generating  savings 
on the use. On one hand, the production of composites is becoming increasingly cheaper 
and  is  being  done  by  an  increasing  number  of  manufacturers.  On  the  other,  processing 
higher-quality  composites  requires  high  temperatures,  an  extremely  clean  work 
environment,  and  labour-intensive  processes.  Finally,  in  contrast  to,  parts  made  of 
rubber, plastic, tool steel, stainless steel, and aluminium alloys composites cannot be 3D 
printed.87 This growing technological complexity favours VMs and their affiliates. 

Wholesale distributors 

86  A  process  by  which  the  design  of  an  object  (visible  part)  is  re-created  through  the  analysis  of  its 
structure, function and operation using a physical part as a starting point. 
87 Hoberg, F. (2020, October 10) Ersatzteile aus dem Drucker – doch das Problem liegt in der Stabilität. 
Die Welt. 

23 

 
 
                                                           
Sourcing  from  a  single  supplier  will  continue  as  an  important  factor  in  repairer 
purchasing decisions.88 It is linked to the process convenience by ordering, delivery and 
generating  price  discounts.  Independent  parts  distributors  will  remain  at 
disadvantage  as  they  are  no  longer  in  the  position  to  offer  their  customers  a  full 
range of spare parts, i.e. including visible spare parts. The same is true for OES with 
regard  to  car  makers  or  models  where  they  have  no  supply  contracts  with  but  would 
nevertheless prefer to offer a full range of spare parts. 

There are additional knock-on effects resulting from design protection. The elimination 
of competition in the submarket of visible spare parts necessarily affects the whole EUR 
50.7  billion  market  of  automotive  spare  parts  (as  of  2019)  by  shifting  the  balance  of 
power, fragile as it is there anyway, in favour of the VMs. More specifically, distribution 
channels in the European automotive market would remain below efficiency frontier. In 
2017, the three leading aftermarket players together control just 15 percent of the market. 
By  contrast,  the  consolidation  process  in  the  US  is  already  well  advanced  with  the  top 
three  players  boosting  a  combined  market  share  of  almost  50  percent.89  The  financial 
pressure that companies experienced due to reduced sales during the covid-19 pandemic 
will  likely  accelerate  industry  consolidation  across  the  value  chain  in  the  EU.  Current 
divergent rules on design protection may constrain this healthy consolidation process, in 
particular  when  it  comes  to  independent  players,  leading  to  suboptimal  outcomes. 
Economies  of  scale  are  needed  to  generate  savings  in  parts  procurement,  to  optimize 
logistics and warehousing costs. 

Repairers  

Independent (body) repairers would continue to be forced to buy design protected visible 
spare parts from their competitors, the authorised car dealers, necessarily at considerable 
margins.  At  the  same  time,  authorised  car  dealers  may  keep  discounts  from  VMs. 
Accordingly, rivalry in the aftermarkets remains weakened. 

In  the  future,  competition  between  the  repairers  will  be  shaped  with  the  secularly 
stagnating  demand  for  collision  repairs  on  one  hand  and  increased  connectivity  on 
the  other.  Fewer  miles  driven  every  year  and  improved  security  technology  (Advanced 
Driver  Assistance  Systems  –  ADAS)  will  reduce  collision  rates  by  ~15%  until  2030 
leading  to  fewer  repairs90.  Furthermore,  competition  between  VM  affiliated  and 
independent repairers will be impacted by fleet connectivity. By 2030, around 50% of the 
fleet  will  have  connectivity  that  includes  direct  data  streaming,  processing,  and 
communication with external parties.91 The VMs have an advantage over the independent 
channel because of their direct data access.92 

Consumers 

In Member States without a repair clause, consumers would continue to be forced to buy 
visible spare parts exclusively from the  VM and their distribution channel as supplying 

88 Work After Sales (2020), supra note. Section 4.1. Manufacturing sites for visible parts. 
89 Roland Berger (2018, June) Survival of the Fittest. 
90 BCG, CLEPA & Wolk After Sales (2021, March) At the crossroads: The European Aftermarket 2030. 
91 Ibidem. 
92 The  recent MVBER Evaluation COM(2021)264 has concluded that independent repairers  will only be 
able to continue to exert competitive pressure if they have access to key inputs such as spare parts, tools, 
training, technical information and vehicle-generated data. 

24 

 
                                                           
from another source would constitute an IP infringement. Since visible spare parts are not 
interchangeable between VM competition may only work indirectly through the primary 
automotive market, mainly through brand reputation effects and the proportion of buyers 
who  make  their  choice  taking  into  account  the  lifetime  costs  of  a  car.  However,  as 
suggested  in  the  Evaluation  of  the  MVBER,  at  least  for  passenger  cars,  links  would 
remain  weak  between  the  primary  automotive  markets  and  the  aftermarkets.93  As 
explained  above  (see  Section  2.1.1),  the  vehicle  owner  remains  a  captive  consumer, 
subject to a tied pricing system and the inherent risk to be overcharged for spare parts. 

Online sales are restricted by the fragmented IP and represents an average share of 2.3% 
of  total  purchasing  value.94  Buying  via  the  internet  in  the  MS  with  a  repair  clause,  a 
consumer in a Member States without repair clause has to demonstrate that such order is 
done  privately  and  for  non-commercial  purposes,  otherwise  such  purchase  would 
constitute  an  IP  infringement.  The  risk  of  being  sued  for  IP  infringement  discourages 
repair  service  providers  to  buy  cross-border.  Furthermore,  to  benefit  from  discounts 
workshops  have  an  incentive  to  stick  to  the  specific  distributor  (supplier)  rather  than 
looking  for  ad-hoc  more  competitive  offers.  Therefore,  online  (cross-border)  sales  are 
expected to have limited impact on increasing competition on the spare parts market. 

The degree to which car manufactures exploit design protection in their pricing strategies 
varies substantially. Until recently, the usual approach of carmakers to price spare parts 
was rather simple: in most cases, carmakers simply set the prices of spare parts equal to a 
fixed  multiplier  of  the  respective  manufacturing  costs.  The  innovation  was  brought  in 
2008  by  algorithmic  pricing  (Partneo).  According  to  publically  available  information, 
five  major  carmakers  used  an  algorithmic  pricing  software  (Partneo)  to  identify  the 
maximum price consumers would be willing to pay for automotive spare parts. Thanks to 
this software, between 2008 and 2013 these major carmakers increased prices of visible 
spare parts by 15% on average, boosting their total revenues by around EUR 1.5 billion 
over  nearly  ten  years.95  In  consequence,  without  the  design  reform,  one  could  expect 
OEM to extract even more spare parts rent than currently, thanks to sophisticated price 
differentiation techniques. 

2.2.2.  Regulatory burdens 

 Outdated procedures 

Without update and simplification of RCD procedures, the RCD system would continue 
not  meeting  modern  business  needs  and  unnecessarily  impose  burdens  on  businesses, 
SMEs and individual designers to make effective and efficient use of the system. 

93 This may be the case for the passenger cars. See Section 2.1. in COM(2021)264. 
94 Ibidem. Wolk After Sales Report (2021). 
95  For  media  coverage  of  this  case,  we  refer  to:  Philippin,  Y.  (2018,  May  31).  How  Renault  and  PSA 
Peugeot Citroën secretly  hiked global cost of spare  parts by €1.5bn. Mediapart; Gnirke, K. (2018a, May 
31).  Unternehmensberatung  soll  Renault  und  Peugeot  bei  Preisabsprachen  geholfen  haben.  Der  Spiegel 
Mobilität; Gnirke, K. (2018, June 1). Die Abzock-Konzerne. Der Spiegel Mobilität; Bergin T. & Frost L. 
(2018,  June  3).  Software  and  stealth:  how  carmakers  hike  spare  parts  prices.  Reuters  Technology  News; 
Mandrescu, D. (2018, June 7). When algorithmic pricing meets concerted practices  - the case of Partneo. 
CoRe Blog. 

25 

 
                                                           
 RCD fees  

Without changes, the real cost of fees would continue to decline together with inflation. 
Already in 2020 the fees were 26% lower in real terms than in 2002. Taking into account 
ECB  inflation  forecast,  in  2023  they  are  expected  to  be  30%  lower  than  in  200296. 
However, without streamlining of the RCD fee structure and in particular an adjustment 
of  the  amount  of  fees  to  be  paid  for  the  registration  of  RCDs,  the  Community  design 
system  would  not  meet  its  objective  of  presenting  the  minimum  cost  and  difficulty  to 
applicants,  so  as  to  make  it  readily  accessible  to  SMEs  as  well  as  to  individual 
designers97, stifling innovation and the development of new products. 

Specifically, without creating a more balanced, less complex and more transparent RCD 
fee  system  benefiting  small  and  large  entities  equally,  SMEs  and  individual  designers 
would  continue  to  be  discouraged  from  seeking  Union-wide  design  protection  in 
registered form. Larger entities filing numerous designs would continue to be privileged 
and smaller ones continue cross-subsidising the former.  

In  addition,  applicants  of  all  types  would  continue  facing  unnecessary  administrative 
burdens when having to  pay a separate publication fee shortly after the  application fee. 
Also, certain fees would continue to be charged in relation to the design registry that do 
not  apply  for  EUTMs,  such  differences  unnecessarily  complicating  the  work  of  both 
applicants  and  the  EUIPO,  and  increasing  costs  to  maintain  different  (operations) 
management tools. 

 Divergent national rules 

Without appropriate changes, the current sub-optimal conditions for European businesses 
and  the  under-developed  complementarity  between  the  various  design  systems  are  not 
likely to  improve.  It  is  true that there could  be  some promising  further  convergence on 
design  law  aspects  achieved  through  the  EUIPN  based  on  the  cooperation  framework 
established in the context of the trade mark reform98. However, such collaboration among 
IP Offices in the EU also clearly revealed that the existing legal differences in the laws of 
the Member States are a hindrance to further alignment of practices in the EU. National 
IP  offices,  which  due  to  existing  legal  differences  are  prevented  from  participating  in 
cooperation projects with the EUIPO and other IP offices, run the risk of falling behind 
in  terms  of  automation,  timeliness,  reliability,  predictability  and  user-friendliness.  The 
less  attractive  they  become,  compared  to  the  RCD  system,  the  greater  is  the  risk  that 
design  owners  cease  to  use  them  altogether,  opting  for  RCD  protection  instead.  In  the 
long run, this may threaten the viability of certain national systems and the harmonious 
and complementary  coexistence  of the two systems  which  ensures the principle of free 
choice. This applies all the more so as there is no harmonisation achieved at international 
level  either  (i.e.  EU  action  remains  necessary).  The  long-pending  Draft  Design  Law 
Treaty  (similar  to  the  Singapore  Treaty  on  the  Law  of  Trademarks),  aiming  at 
simplifying  and  harmonising  administrative  procedures  in  respect  of  national  design 
applications, is still far from being adopted.  

96 ECB staff macroeconomic projections for the euro area (September 2021): Inflation in 2021 of 2.2%, in 
2022 of 1.7% and in 2023 of 1.5%. 
97 Recital 24. 
98 See information provided in footnote 65. 

26 

 
                                                           
3.  WHY SHOULD THE EU ACT? 

3.1.  Legal basis 

In the context of the establishment and functioning of the internal market, Article 118(1) 
TFEU empowers the European Parliament and the Council to establish measures for the 
creation  of  European  intellectual  property  rights  to  provide  uniform  protection  of 
intellectual  property  rights  throughout  the  EU,  including  the  setting  up  of  centralised 
Union-wide authorisation, coordination and supervision arrangements.  

Furthermore, Article 114(1) TFEU empowers the European Parliament and the Council 
to adopt measures for the approximation of the provisions laid down by law, regulation 
or administrative action in Member States, which have as their object the establishment 
and functioning of the internal market.  

3.2. 

Subsidiarity: Necessity of EU action 

The  Community  design  (in  registered  and  unregistered  form)  is  a  self-standing  EU 
intellectual property title which has been created by an EU Regulation. In as much as the 
analysis  carried  out  as  part  of  this  impact  assessment  proved  that  the  modification  of 
certain  provisions  of  the  Regulation  is  necessary  in  order  to  improve  and  streamline  in 
particular  the  RCD  system,  only  the  EU  legislator  is  entitled  to  make  the  necessary 
amendments99.  

The same goes for (simultaneously) necessary amendments of corresponding provisions, 
which form already part of the DDir.  

Moreover,  taking  into  account  that  the  identified  problems  related  to  the  significant 
divergences of the regulatory  framework either do not  allow, or notably distort, a level 
their 
playing  field  for  EU  companies  with  further  negative  consequences  on 
competitiveness and that of the EU as a whole (e.g. spare parts), it is advisable to adopt 
measures  that  can  improve  the  relevant  conditions  for  the  functioning  of  the  internal 
market. Such measures aiming to extend the current level of approximation through the 
DDir can only be taken at EU level, all the more so given the need to ensure coherence 
with  the  RCD  system.  It  has  to  be  considered  in  this  context  that  the  RCD  system  is 
embedded in the European design system which is built on the principle of coexistence 
and complementarity between national and Union-wide design protection. While the CD 
Regulation  provides  a  complete  system  where  all  issues  of  substantive  and  procedural 
law are provided for, the current level of legislative approximation reflected in the DDir 
is  only  limited  to  selected  provisions  of  substantive  law.  In  order  to  be  able  to  ensure 
effective  and  sustainable  coexistence  and  complementarity  between  the  components 
involved, it is necessary  to create an overall harmonious system of design protection in 
Europe with similar substantive rules and at least principal procedural provisions which 
are compatible.  

As regards the issue of design protection for spare parts specifically, it is to be added that 
the completion of the internal market  for spare parts  can only be achieved at  EU level. 
The more than 20 years of experience with the provisions of Article 14 DDir has shown 
no  strong  trend  towards  harmonisation  among  Member  States  on  a  voluntary  basis 

99  This  is  all  the  more  valid  in  view  of  the  EUIPO  being  a  regulatory  Agency  of  the  EU  with  legal, 
administrative and financial autonomy, which was created by the Council to manage the RCD system (in 
addition to that of the EU trade mark). 

27 

 
                                                           
(despite the introduction of a repair clause in a few more Member States) or through self-
regulation by the industry. In terms of proportionality, action at EU level does not cause 
any immediate costs. Aftermarket liberalisation only requires legal acts in those Member 
States that currently protect spare parts to lift this protection and hence causes the lowest 
administrative costs of all options considered.  

3.3. 

Subsidiarity: Added value of EU action 

Action at EU level would ensure that the design protection system in Europe as a whole 
gets  substantially  more  accessible  and  efficient  for  businesses,  in  particular  SMEs  and 
individual  designers.  It  would  further  ensure  the  outstanding  completion  of  the  single 
market for repair spare parts to the substantial benefit of consumers being able to choose 
between competing parts at lower prices.  

4.  OBJECTIVES: WHAT IS TO BE ACHIEVED? 

4.1.  General objectives 

The  general  aim  of  the  reform  initiative  on  the  legislation  on  industrial  designs  is  to 
promote contribution to design excellence, innovation and competitiveness in the EU by 
ensuring  that  the  design  protection  system  is  fit  for  purpose  in  the  digital  age  and 
becomes  more  accessible  and  efficient  for  individual  designers,  SMEs  and  design 
intensive industries. Furthermore, it aims at completing the single market for repair spare 
parts.  

4.2. 

Specific objective 

This initiative has three specific objectives linked to the respective problems identified: 

  Opening up the spare parts aftermarket for competition (Objective 1);  

 

Improving  the  accessibility,  efficiency  and  affordability  of  registered  Community 
design protection (Objective 2); 

  Enhancing  complementarity  and  interoperability  between  the  Community  and 
national  design  systems,  in  particular  through  harmonisation  of  procedural  rules 
(Objective 3). 

5.  WHAT ARE THE AVAILABLE POLICY OPTIONS? 

5.1.  What is the baseline from which options are assessed? 

The respective baselines from which options are assessed are already described above in 
Section 2.2.  

5.2.  Description of the policy options 

5.2.1.  Options to tackle Objective 1 on spare parts protection 

The decision to open up the aftermarket for competition was already taken at the moment 
of adoption of the DDir. The latter does not require any harmonisation with respect to the 
protection of spare parts by a design right. Article 14 stipulates that Member States shall 
maintain their existing laws in this regard. They may, however, change those provisions 
only  in  a  way  that  liberalises  the  spare  parts  market  (the  “freeze  plus”  solution).  A 

28 

 
Member State that, at the time of adoption of the DDir, did not grant design protection of 
spare parts could thus not reintroduce such protection. 

Against that background, the options for consideration are the following: 

Baseline: The current status quo, as provided for by Article 14 DDir and Article 110(1) 
CDR,  would  continue  on  a  permanent  basis,  i.e.  Member  States  remain  free  to  retain 
national  rules  extending  design  protection  to  the  reproduction  of  spare  parts  for  the 
purpose of repair, while no such protection should continue to exist at Union level. 

Option  1.1:  Full  liberalisation  for  all  designs,  i.e.  the  market  of  ‘must-match’  spare 
parts would be opened for competition in the entire EU, extending it to both existing and 
new  designs.  This  option  would  involve  inserting  into  the  DDir  a  ‘repair  clause’,  as 
contained  in  Article  110(1)  CDR,  and  allowing  the  identical  reproduction  of  protected 
parts  of  complex  products  for  the  purpose  of  repair.  The  inserted  repair  clause  would 
have  legal  effect  for  both  the  future  and  the  past  (i.e.  be  applicable  to  designs  granted 
before and after its entry into force). Both the CDR and DDir  would be explicit in that 
the repair clause only  extends to  parts of  complex products  whose shape  is  dictated by 
the product’s overall appearance (so-called ‘must-match’ parts). As it is already the case 
in liberalised national aftermarkets, parts manufacturers would have to inform consumers 
about  the  origin  of  the  parts  so  that  they  can  make  an  informed  choice  between 
competing spare parts100.  

Option 1.2: Instant full liberalisation for new designs followed by full liberalisation 
for  old  designs  after  transitional  ten-year  period:  Same  changes  as  previous  option, 
except that the repair clause to be inserted into the DDir would have instant legal effect 
only for the future (i.e. be applicable only to designs applied for after entry into force). 
Designs  already  granted  before  entry  into  force  would  continue  to  be  protected  for  a 
transitional period of ten years. 

Option  1.3:  Full  liberalisation  for  new  designs:  As  in  the  previous  option,  the  repair 
clause to be inserted into the DDir would have legal effect only for the future. Designs 
already granted before entry into force would not be touched and thus be allowed to be 
protected for the maximum term of 25 years.  

5.2.2.  Options  to  tackle  Objective  2  on  complex  procedures  and  sub-

optimal fees 

5.2.2.1 Update and simplification of rules 

Baseline: Current procedures are maintained. 

Sole  Option  2:  Simplification  and  streamlining  of  RCD  procedures  (including 
through alignment with trade mark reform).  

  Update  of  requirements  for  the  representation  of  designs  (e.g.  inclusion  of 

dynamic 3D-representation and video filing)  

  Deletion of “unity of class” requirement for multiple applications  

  Alignment of RCD proceedings with EU trade mark proceedings.  

100 According to the CJEU in Joined Cases C-397/16 and C-435/16, Acacia, persons relying on the repair 
clause exemption laid down in Article 110 CDR must contribute, as far as possible, to ensuring compliance 
with the conditions laid down in that provision.   

29 

 
                                                           
 5.2.2.2 Fees payable for RCD 

Baseline: Current fee structure and levels are maintained. 

Option 3: Lower RCD registration fee and easier multiple applications: This option 
would  require  the  removal  of  the  unity  of  class  requirement  in  the  CDR  for  multiple 
applications  and  the  amendment  of  the  Fees  Regulation  for  the  adjustment  of  fee 
amounts. In order to ensure equal treatment of applicants with smaller and larger filing 
volumes, the latter would also involve the introduction of a flat fee per additional design 
and thus the abolition of bulk discounts being granted at different levels dependent on the 
number of designs contained in a multiple application. To counterbalance these benefits 
at filing stage, the above would be coupled with an increase of subsequent renewal fees. 
This  model  would  allow  easier  access  to  RCD  protection,  in  particular  for  SMEs 
(cheaper  acquisition  of  the  right  and  first  renewal),  while  at  the  same  time  it  would 
safeguard  that  only  those  RCDs  utilised  in  the  market  place  remain  on  the  register  by 
increasing subsequent renewals fees for second to fourth renewal. 

Sub-option  3.1:  According  to  the  first  sub-option,  the  headline  fee  to  obtain  a  single 
RCD would be reduced from EUR 350 to EUR 250. For each additional design forming 
part of a multiple application, the fee  would be EUR 125  101leading to savings of EUR 
125  vis-à-vis  a  single  design  application  per  design.  The  fee  for  renewals  under  this 
option would be as follows: first renewal  – EUR 70; second renewal – EUR 140; third 
renewal – EUR 280; fourth renewal EUR 560102. For this option, the sum of fees for the 
first two renewals would be equivalent to those under the current fee level, that is EUR 
210 in total103. 

Sub-option 3.2: Under the second sub-option, the headline fee would be also EUR 250 
but  each  additional  design  of  a  multiple  application  further  discounted  to  EUR  100 
instead of the proposed EUR 125 under sub-option 3.1. This would further promote easy 
access  to  RCD  protection.  However,  unlike  sub-option  3.1  all  renewal  fees  would  be 
higher  than  under  the  current  system  in  order  to  counterbalance  the  likely  increase  of 
design applications at  filing stage.  The fees  for renewals  under this option  would be as 
follows: first renewal – EUR 80; second renewal – EUR 160; third renewal – EUR 320; 
fourth renewal EUR 640. This option would effectively allow applicants to register two 
RCDs for the same fee as currently required for a single RCD.  

In  both  cases  adjustment  of  fees  would  be  coupled  with  a  simplification  of  the  fee 
structure by abolishing the separate publication fee and adding this fee to the registration 
fee  (so  that  in  the  above  sub-options  the  reduced  headline  fee  would  include  the 
publication  fee  amount).  In  order  to  align  RCD  rules  with  those  for  the  EUTM,  the 
transfer  fee  for  RCDs  is  proposed  to  be  abolished  as  well.  Additionally  a  cap  of  50 
designs  per  application  would  be  introduced  to  keep  expected  loss  of  revenues  limited 

101 Under the current system it is EUR 115 for each design from the second to the tenth design and EUR 50 
for each design from the eleventh design onwards. 
102 Under the current system it is EUR 90 for the first renewal, EUR 120 for the second, EUR 150 for the 
third and EUR 180 for the fourth period of renewal. 
103 EUR 90 + EUR 120.  

30 

 
                                                           
and  prevent  potential  abuses  of  multiple  applications  due  to  abolition  of  the  transfer 
fee104.   

5.2.3.  Options to tackle Objective 3 on divergent procedural rules  

When it comes to consideration of available policy options, the necessary level and focus 
of  approximation  of  national  laws  should  be  assessed.  The  options  under  consideration 
are the following:  

Baseline: No further approximation of national design laws and procedures.  

Option 4.1: Partial further approximation of national laws and their coherence with 
the RCD system. This  option  would involve the addition  of provisions to  the DDir  on 
selected  design law aspects not  yet addressed therein and identified by stakeholders in 
greatest need of harmonisation, in particular, concerning procedures, in  alignment with 
relevant provisions contained in the CDR. In terms of procedures, this would allow, inter 
alia, users of all national design protection systems also to a) represent their designs by 
other means  that  merely  static graphic or photographic reproduction when applying  for 
registration, b) file multiple applications at domestic level by combining several designs 
in  one  application,  and  without  being  restricted  to  products  belonging  to  the  same 
Locarno  Class,  c)  request  deferment  of  the  publication  of  a  design  application  for  a 
period  of  30  months  from  the  date  of  filing,  d)  rapidly  obtain  a  design  registration 
without  being  subject  to  prior  art  examination,  and,  e)  seek  for  the  invalidation  of  a 
registered  design  before  the  IP  office.  The  addition  of  principal  procedural  rules  to  the 
DDir  would  be  combined  with  the  further  alignment  of  a  few  selected  substantive  law 
aspects (apart from the spare parts issue) in accordance with the provisions of the CDR. 
These few additional substantive law aspects concern the legal relevance of the product 
indication for the scope of design protection, the right to prior use, and the presumptions 
of ownership and validity.  

Option  4.2:  Full  approximation  of  national  design  laws  and  procedures.  This  approach 
would  be  based  on  Option  4.1,  encompassing  its  above  components,  but  include  all 
remaining aspects of substantive design law and procedures which are part of the CDR 
but not of the DDir, such as specific rules on unregistered design protection, designs as 
objects  of  property,  surrender  of  a  registered  design,  appeal  procedures,  general 
procedures  before  the  IP  Office  (e.g.  oral  proceedings,  taking  of  evidence,  or 
notification), or apportionment of costs.  

When  it  comes  to  options  4.1  and  4.2  it  should  be  furthermore  assessed  how  such  an 
approximation could be pursued. Even though this question touches upon the choice of 
legal instrument, it is considered that this issue is of crucial importance to addressing the 
effectiveness and efficiency of both policy options and should be tackled here.  

– It could be envisaged that the approximation would be carried out on a voluntary basis 
(sub-options  4.1a  and  4.2a,  respectively).  In  such  a  case,  there  would  be  no  further 
approximation  in  formal  terms,  i.e.  no  changes  to  the  DDir.  National  offices  would  be 
encouraged, by non-legislative means, to align their design laws and procedures. To this 

104 The included abolition of the fee to be paid for the transfer of an application for a RCD to another party 
will  open  a  possibility  that  ‘design  application  service  providers’  arise  encouraged  to  make  profit  from 
filing  multiple  applications  (collecting  design  applications  from  third  parties,  gathering  them  in  a  single 
application, applying in their own name and subsequently transferring them back to the actual applicants).  

31 

 
                                                           
 
end, the Commission would issue a Communication (Recommendation) and/or Member 
States  would  agree  to  approximate  their  national  laws  on  a  voluntary  basis.  In  this 
context  the  possibility  of  converging  selected  issues  within  the  EUIPN  based  on  the 
specific  cooperation  framework  to  promote  convergence  of  practices,  as  established 
under Article 152 of the EUTMR, should be considered. This course of action could be 
suitable  in  particular  for  very  technical  issues  such  as  the  formal  requirements  for 
representation of a design.  

– Alternatively, the approximation could be mandatory, i.e. driven by an EU legislative 
measure which would oblige Member States to align their design laws (sub-options 4.1b 
and 4.2b, respectively).  

5.3.  Options discarded at an early stage 

5.3.1.  Spare parts protection 

Option 1.4: A system seeking a short term of design protection: Under this alternative, 
design  protection  for  spare  parts  would  be  effective  for  only  a  limited  period  of  time 
(such  as  five  years).  After  this  period,  the  spare  parts  could  no  longer  be  covered  by 
design protection and any third party would be free to produce and/or market them.  

Option  1.5:  A  remuneration  system  for  the  use  of  protected  designs,  including  the 
appropriate level for remuneration. In the context of this option, independent producers 
could  produce  spare  parts  in  exchange  for  a  reasonable  remuneration  to  be  paid  to  the 
holder of the design right.  

As  already  pointed  out  above,  the  decision  to  open  up  the  spare  parts  aftermarket  for 
competition was already taken at the moment of adoption of the DDir, obliging Member 
States to “freeze” the legal status quo and permitting them to amend their existing laws 
only in a way that liberalises the spare parts market. Given that both Options 1.4 and 1.5 
would  imply  the  re-introduction  of  design  protection  for  repair  spare  parts  (at  least)  to 
certain extent in Member States that already fully liberalised their aftermarkets (either in 
form of time-restricted protection when opting for a shorter term of protection or in form 
of a license fee to be paid to right holders on terms to be agreed), it is deemed appropriate 
to  discard  these  options  at  an  early  stage  as  clearly  going  against  the  “freeze  plus” 
agreement  reflected  in  Article  14  of  the  DDir.  It  appears  also  politically  unrealistic  to 
contemplate  the  implementation  of  these  options  any  further  in  view  of  the  strong 
opposition  to  be  expected  from  the  Member  States  that  have  already  opened  up  their 
aftermarkets by means of a repair clause. Furthermore, these options were already tested 
in  the  context  of  past  initiatives  in  vain105.  The  introduction  of  a  remuneration  system 
proved  in  addition  to  be  too  complicated  and  thus  unfeasible  in  practice  as  the  Greek 
example has shown106. The responses to the two public consultations, and, in particular, 
to  the Second Public Consultation  in  the context of  which potential options for solving 

105 In order to prevent the creation of a captive market in spare parts, the Commission originally proposed 
in  1993  (COM(93)  344  final)  the  inclusion  of  a  limited  term  of  protection  for  spare  parts  of  only  three 
years.  In  response  to  amendments  proposed  by  the  European  Parliament,  the  Commission  subsequently 
proposed in an amended proposal of 1996 (COM(96) 66 final) the introduction of a remuneration system to 
operate as from the date of registration of the design. However, that amended proposal did not meet with 
approval by the Council either.  
106  Greek  design  law  provides  for  a  repair  clause  combined  with  a  five-year  term  of  protection  and 
remuneration.  However,  the  remuneration  system  has  never  been  implemented  due  to  failure  of  vehicle 
manufacturers and equipment suppliers in finding an agreement on the amount of royalties.  

32 

 
                                                           
the problem were consulted with stakeholders also confirmed that there is actually no real 
support for them.107 

5.3.2.  Further harmonisation of national rules 

Option  4.3:  A  single  design  rulebook  which  would  entirely  replace  Member  States' 
design  laws  by  setting  uniform  rules  across  the  EU.  As  a  result,  all  national  IP  offices 
would apply identical provisions when it comes to their national designs. 

This  option  would  be  clearly  disproportionate  in  view  of  the  demonstrated  needs.  It 
would not take into account at all the historical development of laws in  Member States 
and  would  unduly  deprive  them  from  any  kind  of  flexibility  at  national  level. 
Accordingly, this option will not be considered any further.  

6.  WHAT ARE THE IMPACTS OF THE POLICY OPTIONS? 

6.1. 

Spare parts protection  

The different options would have varying impacts on single market performance.  

6.1.1.  Full liberalisation for all designs (Option 1.1) 

Abolition of design protection in the aftermarket would lead to increased competition in 
across the value chain. This option would assure maximum allocative efficiency.  

Impact on prices 

The  impact  on  car  manufacturers  will  most  probably  be  limited  to  downstream 
price  competition  and  will  be  heterogeneous  across  VMs.  Herz  &  Mejer  (2020)  show 
that  there  are  differences  in  the  degree  to  which  car  manufacturers  exploit  design 
protection in their pricing strategies.  VMs that exploit design protection in their pricing 
strategies today to a significant degree, will need to adjust their strategies and set lower 
prices as otherwise the final customers would switch to alternatives. 

Still,  despite  full  liberalisation,  OEM  and  OES  producers  will  be  able  to  charge 
higher  prices  than  that  of  independent  suppliers.  According  to  Wolk  After  Sales 
survey,108  the  perceived  quality  of  the  product  is  a  very  important  factor,  along  with 
fitting accuracy, that both  repairers and customers take into account in their purchasing 
decisions.  Furthermore,  the  same  survey  shows  that  in  the  perception  of  the  repairers, 
OEM  and  OES  parts  are  of  higher  quality  compared  to  parts  produced  by  independent 
suppliers. 

There will be potential  savings to customers in markets where currently no repair 
clause is in place ranging between EUR 415 and 664 million annually due to price 
competition  (for  details  see  Annex  4).  According  to  Insurance  Europe109,  around  12 
million  motor  third-party  liability  claims  are  made  annually.  Assuming  that  60%110  of 
those  claims,  i.e.  7.2  million,  are  made  in  Member  States  without  a  repair  clause 

107  It  is  revealing  in  that  context  that  even  the  European  Automobile  Manufaturers’  Accociation  rather 
expressed its preference for maintaining the current status quo instead of pleading for these other options.  
108 Wolk After Sales (2021), supra note, Section 3.1. Purchasing behaviour of workshops. 
109 Insurance Europe. (2019, February). Report on European Motor Insurance Markets. 
110 Proxy with the share of the EU car fleet. Eurostat, Passenger cars, by age. 

33 

 
                                                           
(including DE and FR), one arrives at a saving per insurance claim in Member States 
without a repair clause between EUR 58 and 92. 

VMs may try to compensate for their loss of profits drawn from their market power in the 
spare  parts  market  by  increasing  their  prices  for  new  cars.  However,  the  possibility  of 
passing  on  higher  costs  to  the  primary  market  will  be  limited  by  competition  in  that 
primary  market.  If  so,  with  around  12  million  new  cars  registered111  annually  in  pre-
Covid  years,  the  potential  annual  loss  of  revenues  per  car  sold  is  between  EUR  34 
and 55.112 

Impact on competition 

Both  OES  and  independent  suppliers  (non-OES)  will  benefit  from  greater 
operational freedom that will allow them to strengthen their market position and to 
consolidate.  First,  OES  parts  producers  in  their  capacity  as  VM-suppliers  enjoy  direct 
access  to  the  aftermarket.  In  their  capacity  as  “independent”  producers  they  should  be 
able to offer a full range of spare parts. Second, independent parts producers will be able 
to sell their parts in the entire EU market. This may lead to more investments in the EU. 
Third, independent  distributors can offer complete lines of spare parts in  the entire EU 
market  and  benefit  from  the  economies  of  scale.  Finally,  independent  repairers  retain 
their chance to compete, with prospect of success, against the networks of authorised car 
dealers/repairers.113 

In contrast to the situation in 2004, the introduction of a repair clause today may help the 
independent  aftermarket  channel  remain  competitive  in  the  world  characterised  by 
reduced profit margins due to declining demand for collision repairs (see Section 2.2.1). 
Economies of scale that will result from market liberalisation as well as efficiency gains 
due  to  possible  consolidation  may  help  the  independent  sector  maintain  their 
competitiveness, allowing for investments needed to keep up with digital transformation 
of the industry.  In case the independent  channel  becomes more competitive, the impact 
on VMs will go beyond price competition in the downstream market.  

First, certain amount of turnover will shift from the VMs to the independent sector. 
This will presumably happen relatively less in the lighting and glass markets where the 
market share of VMs brands is the smallest. It may, above all, occur in the market which 
is  of  key  interest  to  the  car  industry:  the  body  panel.  Among  three  visible  spare  parts 
segments, body parts is the largest one with the value of EUR 9.7 billion (60% of total) 
in  2019.  The  VMs  have  a  very  strong  position  in  this  market.  75%  of  sales  are  OEM 

111 DG Mobility and Transport (European Commission) (2021), supra note. 
112  Loss  of  revenue  per  car  is  calculated  by  dividing  savings  to  consumers  by  the  number  of  new  cars 
registered. 
113 There is a total of 309,172 workshops in the EU27 and only 19% of them are authorised workshops of 
the VMs. Among them there are 147,039 multi-brand mechanic workshops, 35,966 body/paint workshops 
and  9,978  car  glass  workshops  (Work  After  Sales  (2021),  supra  note.  p.  18.).  Yet,  the  number  of 
independent garages differ between Member States reflecting the age of the car fleet. Based on data from 
2014 in DE, ES, NL and BE – 58% of garages (around 55,500) are not connected to manufacturers, going 
up to 93- 96% of workshops in Baltic States “. In Eastern Europe, independent workshops are dominant. In 
Southern Europe there tend to be a large number of independent repairers, while there are a larger number 
of authorised dealers in France and Germany. Motorists across much of Northern Europe are traditionally 
loyal  to  local  garages  and  generally  prefer  to  let  professionals  choose  the  appropriate  parts  rather  than 
fitting it themselves”. For details see Study on the operation of the system of access to vehicle repair and 
maintenance information (2014), page 132. 

34 

 
                                                           
parts  out  of  which  73.33%  is  sold  via  authorised  networks  of  car  manufacturers114. 
Today, in this segment, the main competition comes from independent players (as shown 
in  Section  2.2.1)  who  have  manufacturing  sites  located  both  in  the  EU  (16  sites)  and 
outside the EU (14 sites in Turkey, China, and Taiwan) 115.  

Assuming that market liberalisation will bring the current VM market share (75%) down 
to the levels of lighting (67%) or glass (57%) segments, between 8% (EUR 0.78 billion) 
and 18% (EUR 1.75 billion) of the overall body part segment is at stake. Yet the impact 
will differ between plastic (bumper) and metal body parts (wings, bonnets, doors). Today 
production  of  plastic  body  parts  for  the  first  assembly  and  for  aftermarket  is  fully 
outsourced to OES who do not engage themselves in the aftermarket. Metal body parts, 
on the contrary, are produced for the most part by VMs which implies that OES will need 
to  make  a  necessary  investment  for  setting  up  production  lines  if  they  wish  to  market 
metal  body  parts  under  their  own  brand116.  Still,  how  much  of  the  body  market 
independent  producers  will  be  able  to  capture  depends  on  how  close  substitute  parts 
produced by independent parts are. Under a full liberalisation scenario, VMs will be able 
to rely on the strength of their trade marks and their dealer networks; independent body 
parts  producers,  on  the  other  hand,  face  a  severe  handicap  in  amortizing  the  expensive 
production  tools  compared  to  the  VM  and  their  OES.  Looking  beyond  the  body  part 
segment, there will be little impact on lighting and glass segments where there is already 
a  strong  presence  of  OES  brands  (see  Figure  2  in  Section  2.2.1).  Against  this 
background,  VMs  would  rather  favour  a  reform  that  foresees  the  direct  opening  for 
lighting  and  glass  and  delays  opening  for  body  parts.  This  is  precisely  what  the  partial 
repair clause recently adopted in France provides for. 

Second, full liberalisation may facilitate the process of consolidation of distribution 
networks (a trend explained in Section 2.2). In such situation, car manufacturers may 
face stronger bargaining power from wholesales who buying larger volumes will be 
able to negotiate lower prices. Economies of scale can reach considerable dimensions in 
the automotive aftermarket.  According to  Roland Berger117, savings  of between 10  and 
20% are possible in the procurement of original parts and the cost of private label parts 
can be cut by 5–10%. Olivier Wyman118 finds that in 2014 total after sales (incl. services 
by branded repair shops, OEM import activities and sales of OEM parts) accounted for a 
modest  share  of  revenues  (11%)  but  for  a  significant  share  (38%)  of  profits  of 
automakers. 

Third,  it  is  to  be  further  expected  that  full  market  liberalisation  may  intensify 
competition  between 
independent  and  authorised  repairers.  On  one  hand, 
independent repairers are now in a better competitive position as they are free to choose 
spare  parts  and  not  be  obliged  to  use  OEM  parts  (in  line  with  the  objectives  of  the 
MVBER).  On  the  other,  authorised  repairers  remain  the  main  distributors  of  the  OEM 
parts.119 In order to attract customers, repairers will compete not only by prices but also 
via  other  instruments  like  service  (density  of  networks,  availability  over  time)  and 

114 Wolk After Sales (2021), supra note. p. 40. 
115 Ibidem, p. 49. 
116 Ibidem, p. 50. 
117 Roland Berger (2018, June) supra note. 
118 Olivier Wyman (2015, September) Graphics System Profit 2035 - Reinvent Sales. 
119 In the  markets  with a repair clause 29% of visible parts are  sold to the customers via  VM authorised 
workshops. It is 41% in markets without repair clause. Wolk After Sales (2021), supra note. 

35 

 
                                                           
product quality (quality of material, warranties). This opening up of the market will also 
require  that  consumers  pay  more  attention  to  the  products  they  purchase.  Results  of  a 
survey  conveyed  by  Wolk  After  Sales120  show  that  customers  actually  exert  high 
influence on the repairers’ purchasing decisions.  

Impact on legal uncertainty 

Full  harmonisation  of  rules  and  their  application  to  all  designs  would  bring  legal 
certainty  and  predictability  to  the  aftermarket  (see  further  also  in  relation  to 
administrative and compliance cost). 

Impact on investment and innovation 

It  is  inherently  difficult  to  precisely  assess  the  impact  of  IPR  protection  on  car  market 
innovation. IPRs do not guarantee that the right holder can amortize its investment. They 
only give it a zone of exclusivity, but the “reward” is exclusively fixed by the market as a 
result of consumer preference. This  preference is  exercised at  the primary  market  (new 
cars) when the car is sold but not on the spare parts market.  

VMs  will  certainly  continue  to  use  design  as  a  marketing  instrument  for  their  core 
business  irrespective of whether or not  there is  protection in  the aftermarket.  Secondly, 
available evidence at the time of the 2004 impact assessment suggests that the investment 
in the design of the outer skin of a car is relatively modest. It is at best 0.7 % of a vehicle 
maker’s  turnover121.  This  can  be  compared  with  profit  margins  expected  by  car 
manufacturers,  forecasted  for  2021  at  10-12%  for  Daimler,  10%  for  PSA,  7-9%  for 
BMW, 6-7.5% for VW, 2.8% for Renault122. Related to the number of cars sold the cost 
of  the  body  design  on  average  is  EUR  50  –  60  per  car  in  the  upper  segment  and 
significantly  less  for  mass  produced  cars.  These  figures  suggest  that  the  impact  of 
introducing a repair clause would be most significant for independent producers that will 
benefit  from  a  potentially  bigger  market  share.  It  is  also  likely  that  these  independent 
producers, benefiting from the scale of the internal market, will step up their investment 
and innovation efforts.   

Impact on employment 

Table 6.1 shows that visible parts for vehicle assembly in the EU are produced at 1,388 
unique manufacturing sites worldwide. Out of these, 268 are OEM (VM sites) locations, 
1,066 are OES locations. Only about 7% of the sites are located outside the EU and their 
import  accounts  for  11%  of  the  EU27  total  production.123  One  would  expect  that  OES 
and independent sites are located in Member States with a repair clause. Yet, the opposite 
is true as almost 70% of OES sites are located in Member States without a repair clause 
(Table  6.1).  That  can  be  explained  by  the  presence  of  automotive  assembly  plants  in 
these Member States.124 Unfortunately, the available data, does not allow to distinguish 
how many of the OES manufacturing sites are producing for the first assembly and which 

120 Work After Sales (2021), supra note. Section 3.1.2. Purchasing criteria. 
121 2004 Extended Impact Assessment, supra note. p. 30. 
122  Forbes,  (2021,  August  19)  “European  Auto  Profit  Outlook  Could  Be  Undermined  By  Price  Inflation, 
Chip Shortage” 
123 Wolk After Sales Experts (2021), supra note, Table 27. 
124 ACEA, Interactive map – Automobile assembly and production plants in Europe. 

36 

 
                                                           
for aftermarket. Accordingly, reliable forecasts on what is the impact of extended design 
protection to spare parts on the location of production sites are not viable. 

Table 6.1. Geographical location of visible parts manufacturing sites (2019) 

EU27 

215 
1025 
28 
1265 

With 
repair 
clause 
69 
308 
18 
394 

Without 
Repair 
clause 
146 
717 
10 
871 

Non-
EU27 

Total 

53 
41 
27 
121 

268 
1066 
55 
1388 

OEM1,2 
OES1,3 
Non-OES 
Total  

Source: (1) Reflect location of sites that supplies for first assembly in the EU;  (2) Sites producing “metal” 
body parts. (3) Including sites producing “plastic” body parts. Table 19 Wolk After Sale Report. Analysis 
based on MarkLines database. 

Looking at production and trade statistics, Wolk After Sales Experts125 evaluated what is 
a  share  of  visible  parts  production  that  is  put  on  aftermarket  in  the  total  production  of 
visible parts. Results  of their analysis shows that in 2019, in  the EU-27, total  domestic 
consumption of visible parts (both first assembly and aftermarket) was EUR 50.7 billion. 
Out of this, EUR 6.8 billion, which reflects value of aftermarket at manufacturing level, 
is put on the aftermarket. The value of non-OES aftermarket at this level totals EUR 1.3 
billion126. The share of aftermarket in domestic consumption of visible parts is therefore 
rather small and amount to 13.4%. 

Against  this  background,  and  taking  into  account  the  stagnating  demand,  consumer 
preference  for  quality,  strong  position  of  VM  in  the  visible  spare  parts  market  (see 
Section 2.2.) and employment creation by independent producers, we expect limited net 
impact on manufacturing employment. 

Impact on consumer safety 

Safety concerns have always been  raised by opponents to a repair clause  defending car 
manufacturers’ interests, including in reply to the two public consultations. It is  argued 
that  the  clause  constitutes  a  danger  for  consumer  protection,  as  allowing  spare  parts  of 
inferior  quality  to  enter  the  market.  No  evidence  was  however  presented  in  support  of 
that allegation127. There is no evidence either that more, or more serious injuries resulting 
from  a  car  crash  occurred  in  Member  States  without  design  protection  as  compared  to 
Member States with design protection for spare parts128. While it is clear that both safety 
and quality of spare parts are matters of proper concern and  must be taken seriously, it 
must  be  noted  though  that  the  function  of  design  protection  is  not  to  generate  and 

125 Wolk After Sales Experts (2021), supra note, Section 4. 
126 Ibidem, Section 4.3. 
127 Search on Safety Gate for dangerous non-food products (europa.eu) did not reveal any relevant result. 
As  far  as  car  manufacturers  have  also  sporadically  alleged  that  market  liberalisation  would  contribute  to 
more  counterfeiting,  no  relevant  evidence  was  presented  either.  The  Commission  nevertheless  tried  to 
measure that by means of customs data, which however, turned out practically impossible. 
128 A Study on ‘The consequences for the safety of consumers and third parties of the proposed directive 
amending  Directive  98/71/EC  on  the  legal protection  of  design  rights’  commissioned  by  the  EP’s  Legal 
Affairs Committee concluded in 2006 that there was no anecdotal or statistical evidence that aftermarket 
parts  had  created  more  safety  risks  in  practice  than  OE-parts  and  that  it  was  remarkable  that  the  vehicle 
industry that had advanced the charge of safety problems was unable to provide any evidence.  

37 

 
 
 
                                                           
safeguard  safety  and  a  particular  product  quality129.  Provided 
the  substantive 
requirements are met (novelty and individual character of the given design), design law 
only  protects 
the  outside  (visible)  “appearance”  of  a  product.  The  structural 
characteristics  of  a  product  (materials,  processing  methods,  fit  or  specifications,  i.e.  all 
relevant factors for safety and quality) are not covered and not taken into account. 

The  EU  Motor  Vehicle  Type-Approval  System  provided  for  in  Regulation  (EU) 
2018/858130 ensures high levels of road safety and environmental protection for vehicles 
equipped with new original parts. Therefore, in some cases, the use of non-original spare 
parts may raise concerns, as they have not been tested in appointed technical laboratories 
as  original  parts  are.  This  affects  mainly  bumpers,  bonnets,  windscreens,  side  body 
panels and side glazing with regard to the tests  on pedestrian protection, frontal impact 
and  side  impact.  Nevertheless,  this  should  not  influence  design  protection  legislation, 
since road safety and environmental protection for vehicles fall under the responsibility 
of  both  vehicle  homologation  and  road  use  authorities,  who  would  need  to  adopt  the 
necessary measures, if any131. In this context, it is worth underlining the role of market 
surveillance  authorities  and  the  mandatory  periodic  Vehicle  Technical  Inspections 
ensuring  that  all  vehicles  in  use  meet  given  road  safety  and  environmental  protection 
levels. 

Apart  from  that,  it  is  not  comprehensible  why  it  should  be  only  a  concern  of  original 
manufacturers and design right holders respectively  to guarantee the safety of the spare 
parts  offered  in  the  market.  It  can  be  presumed  that  independent  manufacturers  do  not 
only  wish  to  produce  inexpensive  but  also  safe  and  robust  spare  parts.  This  is  all  the 
more  valid  if  they  are  genuinely  interested  to  compete  in  the  market  on  a  permanent 
basis.132 

Administrative and compliance cost 

The  ‘full  liberalisation  for  all  designs  option’  requires  amendment  of  the  Design 
Directive  (i.e.  inclusion  of  repair  clause)  and  transposition  into  national  laws  of  the 
Member  States.  It  does  not  involve  the  creation  of  new  administrative  nor  compliance 
costs  on  producers.  The  completion  of  the  single  market  in  this  area  would  result  in  a 
simplification of daily lives of administrations/courts, companies and consumers. Firstly, 
there  would  be  no  more  uncertainty  about  the  applicable  law  across  the  EU.  Hence, 
administrative (search) costs, resulting from the existence of different national regimes in 
parallel, for independent producers and distributors to find out about the legal situation in 
a given Member State where they want to do business, would fall away. The same holds 
for the corresponding costs of repair for consumers and repairers in need of finding out if 
a part has been legally produced within the EU and if they are allowed to use it in their 
home  country  or  possibly  in  other  Member  States  they  want  to  travel  to  or  through. 

129  Josef  Drexl,  supra  note,  p.  243;  Annnette  Kur,  Die  Reparaturklausel  im  Designrecht  –  ein  Ende  der 
Blockade in Sicht?, Mitt. 2019, p. 301, 306.   
130 Regulation (EU) 2018/858 of 30 May 2018 on the approval and market surveillance of motor vehicles 
and  their  trailers,  and  of  systems,  components  and  separate  technical  units  intended  for  such  vehicles, 
amending Reg. (EC) No 715/2007 and (EC) No 595/2009 and repealing Directive 2007/46/EC, OJ L 151, 
14.6.2018, p. 1 -218. 
131 The 2006 EP Study found that type approval and authorisation “are more than adequate means to ensure 
safety” and that vehicle manufacturers were unjustified in invoking a general risk to safety from the use of 
non-original parts to protect their profit margins. 
132 Jutta Figge/Nadine Kahlberg, supra note, p. 250. 

38 

 
                                                           
Secondly, the removal of design protection would imply the disappearance of  litigation 
cases, resulting in a reduction of burdens for administrations and courts.  

Impact on existing design rights  

The ‘full liberalisation for all designs’ option, exempting protection not  only for future 
but also already registered designs in Member States currently not having a repair clause, 
might  conflict  with  fundamental  rights’  protection  under  Article  17  of  the  Charter  of 
Fundamental Rights of the European Union (CFREU) and the principle of protection of 
legitimate expectations. 

While this question is not entirely clear from the case law of the Court of Justice of the 
European  Union  (CJEU),  it  could  be  argued  in  that  context  that  the  full  extent  of 
guarantees  associated  with  the  classic  right  to  property  and  provided  in  Article  17(1) 
CFREU is also  available to protected intellectual property under Article 17(2) CFREU. 
According to  CJEU  case law,  Article 17 CFREU “applies to  rights with  an asset value 
creating,  under  the  legal  system,  an  established  legal  position  enabling  the  holder  to 
exercise  those  rights  autonomously  and  for  his  benefit”.133  It  is  true  that  the  intended 
encroachment upon already protected design rights would only be “partial”, as affecting 
existing rights only in the aftermarket (only component parts specifically used for repair 
would be non-infringing) while leaving them untouched in the primary market where the 
relevant  parts  are  used  for  the  assembly  of  new  cars.  However,  even  though  the  latter 
implies  that  “expropriation”  of  rights  to  property  can  safely  be  excluded,  inserting  a 
repair  clause  with  retrospective  legal  effect  would  still  constitute  an  interference  with 
existing rights. 
Under the  case law of the European Court of  Human Rights  (ECHR)134, in  order to  be 
lawful,  an  interference  must  be  “in  the  public  interest”,  “subject  to  the  conditions 
provided  by  law  and  by  the  general  principles  of  international  law”  and  must  strike  a 
“fair  balance”  between  the  demands  of  the  general  interest  of  the  Union  and  the 
requirements of the protection of the individual’s fundamental rights. It is considered that 
such fair balance and required proportionality could only be ensured by providing for an 
appropriate  transitional  period  to  safeguard  the  legitimate  interests  of  right  holders, 
which takes us to option 1.2 below. 

6.1.2.  Instant  full  liberalisation  for  new  designs  followed  by  full 
liberalisation  for  old  designs  after  transitional  ten-year  period 
(Option 1.2) 

Economic impacts of this option will be the same as for  Option 1.1. but they will fully 
realise only after the transition period of 10 years. 

Impact on competition 

During the ten-year transition period, competition will be limited to the new car designs 
put on the market.  Full liberalisation for new designs will promote competition and 
entry in collision parts for the new, connected cars, a market that is characterised with 
declining demand (due to ADAS) and higher entry cost (due to the use of new/composite 
materials)  when  compared  to  traditional  combustion  engine  cars.  Furthermore,  instant 

133 See Case C-283/11, Sky Osterreich GmbH v. Osterreichischer Rundfunk, para. 34; also, Case T-614/13, 
Romonta GmbH v Commission, para. 57. 
134 For example, ECHR Judgement of 30 May 2000, Alberghiera v. Italy, Application No. 31524/96, §55. 

39 

 
                                                           
liberalisation for new designs will promote, more broadly, competition in repair services 
for  connected  cars,  a  market  where  car  manufacturers  have  a  stronger  competitive 
position because of their direct access to the data (see Section 2.2.1.). It has the potential 
to limit control VMs could gain over aftermarket in the future. 

As far as VMs are concerned, today, the VM authorised repair channel capturers a very 
high  share  of  parts  and  services  for  vehicles  that  are  four  years  and  younger.135 
According  to  BCG  et  al.  Report136,  incumbent  automakers  (i.e.  producers  of  cars  with 
combustion  engines)  are  looking  for  additional  profit  pools  as  they  face  increased 
competition from electric/connected car manufacturers (e.g. Tesla).  They may therefore 
go  for  a  deeper  penetration  in  the  aftermarket  –  and  in  particular  for  vehicles  that  are 
older  than  five  years  --  to  generate  additional  profits  and  revenues.  The  transitional 
period of 10 years may help them to capture higher shares in the old (combustion engine) 
aftermarket. 

Impact on consumers 

Most  VMs  launch  a  new  generation  of  a  given  model  (‘redesign’)  every  five  to  eight 
years.137 In the meantime, they may add small changes to the skin and/or interior design 
of  a  car  to  boost  consumer  interest  in  a  model.  Those  changes  tend  to  be  made  to  the 
bumpers, lights and grille and are called ‘a facelift’. As a result among new cars there are 
‘redesigned’,  ‘facelifted’  and  existing  models.  The  two  first  will  be  subject  to  a  new 
repair clause but not the third one as it will benefit from existing protection. 

Calculation put forward in Annex 4 shows that at the end of the transition period between 
10  and  20%  of  the  passenger  car  fleet  in  newly  liberalised  markets  will  benefit  from  a 
repair  clause.  Furthermore,  during  the  first  five  years  there  will  be  little  room  for 
competition  since,  as  it  was  mentioned  earlier,  it  is  the  VM  authorised  repair  channel 
which capturers a very  high share of parts  and  services for vehicles that are four  years 
and younger. The time where consumers could benefit most today (5-10 years old cars) 
will not be open to competition. 

Impact on legal uncertainty 

The  clear  cut-off  date  will  bring  legal  certainty  to  the  market  and  will  promote 
investment. 

Impact on existing design rights 

As  stated  above  in  relation  to  Option  1.1,  the  introduction  of  a  repair  clause  with 
retrospective  effect  would  interfere  with  existing  design  rights  which  enjoy  protection 
under Article 17(2) CFREU. This does however not mean that these rights are inviolable 
and  must  for  that  reason  be  absolutely  protected138.  In  order  to  be  justifiable,  the 
interference  would  have  to  strike  a  “fair  balance”  of  interests  involved  and  be 
proportional to be admissible139.  

135 Ibidem. 
136 BCG, CLEPA & Wolk After Sales (2021, March), supra note. Trend 10 on page 14. 
137  See  specialised  press:  https://www.autotrader.com/car-shopping/buying-car-why-you-should-pay-
attention-model-cycles-239246; 
https://www.carwow.co.uk/guides/glossary/car-facelift-explained-
0658#gref.  
138 See CJEU in Case C-360/10 SABAM, para 41. 
139 See also Jarass, Charta der Grundrechte der Europäischen Union, 3. Aufl. 2016, Art. 17, Rn. 31ff. 

or 

40 

 
                                                           
A  repair  clause  would  pursue  a  public  interest  being  well  founded  in  the  transitional 
provision  contained  in  Article  14  of  the  DDir140,  which  is  to  liberalise  the  spare  parts 
aftermarket  for  the  purposes  of  fair  and  effective  competition  (linked  also  to  consumer 
protection and competition as broader public interests). Furthermore, such clause would 
only involve a partial restriction of design rights in the aftermarket, i.e. only to the extent 
that relevant parts are used for repair purposes so as to restore the original appearance of 
the product. The scope and exercise of rights in the primary market would be left entirely 
untouched. Therefore, it is considered that the legitimate interests of right owners would 
be sufficiently safeguarded, and that the required fair balance and proportionality would 
be ensured, under the condition that an appropriate transitional period is provided during 
which existing design rights would remain unaffected also in the aftermarket141.  

In the light also of the minimum term of design protection to be granted for under Article 
26(3) of the TRIPS Agreement (see also Section 8.2 on compatibility with international 
obligations), which is ten years, it appears to be both appropriate and sufficient that the 
duration of that transitional period corresponds  to  that same term  of ten years from  the 
date  of  entry  into  force  of  the  recast  Directive  to  safeguard  the  interests  of  right 
owners142.  Even  proceeding  from  the  (hardly  realistic)  assumption  that  (actually  low) 
design development costs would not be entirely amortisable on the primary market, such 
transitional  period  would  still  offer  the  chance  in  particular  to  owners  of  “younger” 
designs  (i.e.  registered  since  not  long  ago)  to  compensate  possible  investments  which 
could not be amortised in the primary market.  

6.1.3.  Full liberalisation for new designs (Option 1.3) 

Economic impacts of this option would be the same as for Option 1.1. only if all cars on 
the market were those newly designed. Taking into account that the new generation of a 
given  model  is  introduced  on  average  every  six  to  eight  years,  and  that  it  takes  on 
average  14  years  to  renew  the  fleet  of  vehicles  in  the  EU143,  we  can  expect  to  see  full 
benefits of this option after 20 to 25 years (in cases where maximum protection is sought 
by  producers).  Calculations  in  Annex  4  show  that  20  years  after  less  than  half  of  the 
passenger car fleet will benefit from a repair clause. One cannot exclude that in order to 
maintain profits on spare parts, manufactures might avoid changes to visible spare parts 
designs and seek protection for the full term of 25 years. Given competitive pressure and 
fast evolving car designs, this seems, however, rather an unlikely scenario.  

6.2. 

Simplification and streamlining of RCD procedures (Option 2) 

Impact on the EUIPO and users of the registration system  

The proposed modernisation of the filing system by overhauling the requirements for the 
design  representation  in  an  application  for  a  RCD  will  be  greatly  beneficial  both  for 
applying  businesses  and  the  EUIPO.  Around  a  quarter  of  RCD  applications  filed  in 
2019/2020  were  deficient.  More  than  half  of  these  (14%  of  all  applications)  lacked  a 

140 Article 14 explicitly permits Member States to change their existing design laws only “if the purpose is 
to liberalise the market for such parts”. 
141  Cf.  Verfassungsrechtliche  Anforderungen  an  die  Beschränkung  bestehender  Designrechte  bei  der 
Einführung  der  Reparaturklausel,  Gutachten  im  Auftrag  des  Gesamtverbands  Autoteile-Handel  e.  V. 
(GVA), erstattet von Prof. Dr. Foroud Shirvani (März 2009). 
142 Ibidem, p. 44.  
143 SWD/2018/190 final, “Impact Assessment on general safety and the protection of vehicle occupants and 
vulnerable road users” (2018), page 10 

41 

 
                                                           
proper representation of the design so as to permit all the details of the matter for which 
protection  is  sought  to  be  clearly  distinguished  and  allow  for  publication.  The 
modernised regime on the representation of designs (both allowing and requiring a clear 
and precise design representation) will facilitate the filing of designs by businesses and 
individual  designers  while  significantly  reducing  the  potential  for  deficiencies  and 
increasing legal certainty. Applicants will consequently have to pay less to their lawyers 
for settling deficiencies in applications.  

The new regime on design representation shall involve savings for design applicants 
of between EUR 160 and EUR 200 per application. Savings are annual, in 2024 they 
are expected to amount at EUR 0.8 to 1.02 million in total. 

Table 6.2. Savings from simplification of requirements for the representation of designs 

Saving per owner (application) (EUR) 
Applications affected 

Year 2024 impact 

Applications affected  
Total savings (EUR million) 

160 to 200 
14.3% 

5,112 
0.82 to 1.02 

Source: Own calculations based on EUIPO data (see Annex 9). 

The  proposed  abolition  of  the  “unity  of  class  requirement”  for  businesses  wishing  to 
apply for RCD protection by means of a multiple application will have different impacts 
on the EUIPO and users of the RCD system. In fact, the majority of RCDs filed form part 
of multiple applications. The abolition of the “unity of class requirement” should result in 
an  increase  of  such  applications.  This  will  entail  losses  of  revenue  for  EUIPO  and 
savings for the users of the RCD system.  

According  to  EUIPO  calculations,  around  20%  of  owners  might  be  affected.  The 
simplification  of  the  filing  of  multiple  applications  is  expected  to  produce  savings 
annually, in 2024 between EUR 0.6 and 1.35 million depending on the fee system chosen 
(Options 3 described below).  

Table. 6.3. Savings from abolition of unity of class requirement  

Saving per owner (application) (EUR) 

Fee structure  

Current  
492 

Opt. 3.1 
234 

Opt. 3.2 
281 

Year 2024 impact 

Applications affected  
Total savings (EUR million) 

2746 (7.7% of all applications, 20% of owners) 
0.64 

1.35 

0.77 

Source: Own calculations based on EUIPO data (see Annex 9). 

6.3 RCD fees 

Sub-options 3.1 and 3.2  

Impact on users of the registration system  

Table. 6.4. Overview of current and proposed fee structure for RCD (in EUR) 

First 5 year period 
Number of designs per application 

Current  

Option 3.1 

Option 3.2 

1 
2-10 
11 and more* 

250 

125 

250 

100 

350 
175 
80 

42 

 
 
 
 
 
 
 
First 5 year period 
Number of designs per application 

Current  

Option 3.1 

Option 3.2 

Cost of each renewal (each for 5 years) 

1st 
2nd  
3rd  
4th  
Note(s): * no limit currently, in case of Option 3.1 and 3.2 limit of 50 designs per application. 
Source: Own calculations based on EUIPO data (see Annex 9). 

70 
140 
280 
560 

90 
120 
150 
180 

80 
160 
320 
640 

The new fee structure would benefit those with lower number of designs per application 
and those who renew protection only once. Excluding the 4th renewal (on which no data 
is yet available) Sub-option 3.1 promises to deliver net savings in 2024 to the amount of 
around EUR 4.1 million and sub-option 3.2 of EUR 4.6 million144. Businesses would get 
more  value  for  money  and  would  not  pay  more  for  the  EUIPO  services  than  is  strictly 
necessary. This would enable in particular SMEs and individual designers to limit their 
costs and to compete with larger firms on more advantageous conditions, which, in turn, 
is in the benefit of consumers and, eventually of society as a whole. 

The  new  fee  structure  will  benefit  designers  who  include  up  to  22  designs  in  a  single 
application  in  case  of  Opt  3.1  and  up  to  48  designs  in  case  of  Opt.  3.2.  Taking  into 
account  the  historical  distribution  of  number  of  designs  per  application,  97.7%  of 
applications will experience cost saving in case of Opt 3.1 and 99% in case of Opt. 3.2.  

As  fees  will  be  updated  in  the  Regulation,  they  will  enter  into  force  immediately  after 
adoption. We expect that this could be as early as  mid-2023, with 2024 as the first full 
year of the new system.  

Savings  for  new  owners  applying  for  design  protection  in  2024  are  expected  at  around 
EUR 345 (Opt.3.1.) to EUR 494 (Opt. 3.2). Savings for the owners making 1st renewal 
(extending  protection  to  10  years)  at  EUR  173  and  EUR  88  respectively.  The  owners 
wishing to protect their designs for 15, 20 and 25 years will pay significantly more than 
currently. The cap in the number of applications in a single filing set at 50 is expected to 
affect just a small fraction of all owners, nevertheless increasing their cost significantly. 
Elimination  of  the  transfer  fee  should  produce  savings  of  around  EUR  200  per  each 
transferred design. Summary of the expected changes and impacts is provided in the table 
below and in Annex 9. 

Table 6.5. Overview of maximum expected impact of options on fees in year 2024. 

Fee structure: 

Current 

Option 3.1 

Option 3.2 

Design 
owners 
affected 

per owner 
(EUR) 

Total  
(EUR 
million) 

per owner 
(EUR) 

Total  
(EUR 
million) 

per owner 
(EUR) 

Total  
(EUR 
million) 

144 The impact of the 4th renewal depends on RCD owners demand. At the time of writing this IA there was 
no  historical  experience  with  the  4th  renewal,  so  its  impact  is  based  solely  on  assumptions.  With  the  4th 
renewal the net impact of option 3.1 and 3.2 amounts to average savings of EUR 1.8 million (see also table 
6.5). EUIPO provided estimations of the impact of fee changes on their budget (without the 4th renewal). 
According to EUIPO, the impact of both options 3.1 and 3.2 is around EUR 3.2 million – see Annex 7. The 
difference comes from using a slightly different methodology. EUIPO calculations are based on individual 
designs,  while  the  calculations  used  in  this  impact  assessment  are  based  on  number  of  applications  and 
owners,  which  required  additional  assumptions  but  allowed  for  identification  of  the  number  of  entities 
affected (see also Annex 9).  

43 

 
 
                                                           
0 
0 
0 
0 
0 
0.18 
-0.6 
-0.45 

14,659 
6,155 
3,157 
1,351 
701** 
71 
375 

0 
0 
0 
0 
0 
2,539.88  
-1,665 

Application fee  
1st renewal fee*  
2nd renewal fee*  
3rd renewal fee*  
4th renewal fee* 
Cap at 50 
No transfer fee* 
Total 
Total without 4th 
-0.45 
renewal 
Note(s):  *  renewals  and  transfers  are  made  on  individual  designs,  this  is  an  approximation  of  affected 
owners  based  on  proportion  of  designs  per  application  per  owner;  **  full  assumption,  there  is  no 
experience yet with 4th renewal 
Source: Own assessment see Annex 9. 

-494.34  
-87.67  
350.66  
1,490.33  
4,049.69  
2,539.88  
-1665.18 

-345.79  
-172.90  
175.33  
1,139.66  
3,345.93  
2,539.88  
-1665.18 

-5.1 
-1.1 
0.6 
1.5 
2.3 
0.18 
-0.6 
-2.25 

-7.2 
-0.5 
1.1 
2 
2.8 
0.18 
-0.6 
-2.25 

-4.55 

-5.05 

Consequently,  the  new  fee  structure  will  benefit  new  design  owners  and  those  that 
prolong  protection  only  once.  With  the  average  (2019-2020)  number  of  designs  per 
application  standing  at  3.4  for  companies  and  2.3  for  natural  persons  (including  also 
small companies without legal entity), the benefits from the application fee reduction will 
be  slightly  higher  for  an  average  company.  Taking  into  account  that  companies  renew 
their designs  from 2.5 (1st  renewal) to  3.3 (3rd renewal) times more often than persons, 
the bulk of savings (1st renewal) and costs (2nd and subsequent renewals) will affect them, 
with negligible impact on persons (see Annex 9). 

According to the EUIPO, the lowering of fees is not expected to significantly increase the 
number of designs protected (based on experience with EUTM fee reductions) at least in 
2024 and 2025. In an optimistic scenario however, the new fee system could lead to  an 
increase in the number of design owners in 2030 from 15% (Opt. 3.1) to 21% (Opt.3.2) 
in comparison to the number expected under the current system. This could translate into 
additional 2,300-2,500 design owners (Opt. 3.1) to 3,200 to 3,400 (Opt 3.2) in 2030. 

Unintended effects 

Among the disadvantages of the proposed fee reduction is the allegation that a lower cost 
for the registration of a RCD could lead to more “frivolous” or “abusive” registrations of 
designs.  However,  there  is  no  data  which  would  support  such  a  position.  Furthermore, 
under  sub-options  3.1  and  3.2  a  flat  fee  for  each  additional  design  in  a  multiple 
application  applies.  In  addition,  increasing  the  higher  level  of  renewal  fees  for  RCDs 
would discourage the maintenance of designs that are not intended to be utilised. 

Could fees be further reduced? 

Fees for an exclusive unitary  IP title like the RCD extending to the whole EU territory 
need to reflect the economic value of the right granted in order not to distort competition 
and  prevent  innovation.  Lower  fees  could  encourage  flagrant  applications,  put 
sustainability of national design protection systems at risk and cut supporting activities of 
the  EUIPO  (such  as  e.g.  IP  awareness  raising  campaigns  or  SME  support).  Moreover, 
respondents 
their 
representatives) did not call for drastically lower fees and considered that fees at the EU 
level should be sufficiently higher than national fees to ensure a proper balance between 
the protection systems. 

the  First  Public  Consultation  (including  IP  owners  and 

to 

Impact on administrative burdens  

44 

 
 
 
 
 
 
 
 
 
The  abolition  of  the  publication  fee  would  reduce  administrative  burdens  as  it 
unifies the registration and publication fee to a single filing fee, and thus  simplifies 
the registration process of design applications. Applicants would no longer be obliged 
to  pay  a  separate  publication  fee  at  the  moment  of  filing  the  design  application  but 
instead pay only the registration fee. This will in particular make the payment of fees for 
multiple applications simpler whose publication fees currently decrease in proportion to 
the number of designs.  

Regarding  multiple  applications,  the  above  proposal  to  introduce  a  flat  fee  per 
additional design instead of staggering them in two brackets (2nd to 10th design, 11th 
design  upwards),  is  therefore  also  warranted  for  reasons  of  simplification.  In  the 
course  of  application  proceedings,  one  or  more  designs  of  a  multiple  application 
pertaining  to  one  or  both  brackets  are  frequently  dropped,  requiring  a  re-calculation  of 
the additional fees. This would be facilitated by a flat fee. 

Impact on the EUIPO 

According  to  Article  172(2)  of  the  EUTMR,  the  amounts  of  the  EU  trade  mark  and 
design fees shall be fixed at such a level as to ensure that the subsequent revenue is, in 
principle,  sufficient  to  balance  the  EUIPO’s  budget.  A  potential  adjustment  of  fees  in 
order to make the system more accessible in particular for SMEs and individual designers 
will therefore need to ensure that this budgetary principle is complied with. 

This  budgetary  principle  aims  at  the  Community  design  system  to  be  financially 
independent of the revenues from EU trade mark fees but does not strive to be cost-based 
at  a  granular  level  to  cover  the  costs  of  specific  administrative  acts.  Therefore,  policy 
considerations  come  into  play  when  determining  the  levels  of  individual  fees,  for 
instance with respect to the fact that fees for renewals also aim at avoiding an extended 
protection for RCDs which are actually not commercialised.  

including  awareness 

RCD  revenues  account  for  around  11%  of  the  total  fee  revenues  of  the  EUIPO  –  and 
stood at around EUR 30m145 in 2020. Expenditures directly attributable to RCD account 
for  around  1/3  of  the  income.  The  rest  is  used  to  finance  certain  “non-fee  producing” 
activities, 
to  promote  knowledge  and 
raising  activities 
understanding  of  design  protection,  and  cooperation  projects  to  foster  convergence  and 
transparency of practices to the benefit of users of the design protection systems (further 
details are provided in  Annex 7, Section II, 1.b). Consequently, it would be possible to 
lower fees further but  only  at  the expense of  these other activities146. The proposed fee 
structure aims largely at preserving EUIPO income while shifting incentives for first time 
application and protection for shorter periods. 

The EUIPO estimated a total loss of revenue in 2024 at EUR 3.2 million for option 3.1, 
and 3.16 million for option 3.2. . The real impact on the EUIPO budget will however be 
smaller  due  to  proceeds  from  the  4th  renewal.  Using  the  forecast  from  Annex  9,  the 
additional  proceeds  from  the  4th  renewal  should  more  than  offset  all  other  losses  in 
revenue, resulting in a revenue increase ranging from EUR 0.26 to EUR 1 million.    

145 EUIPO budget 2020 https://euipo.europa.eu/ohimportal/en/transparency-portal/economic/office-budget.  
146 Article 151(1)(c) EUTMR tasks the EUIPO to promote convergence of practices and tools in the area of 
trade  marks  and  designs.  Under  Article  152(5)  EUTMR,  the  EUIPO  has  to  provide  financial  support  to 
relevant cooperation projects with a ceiling of funding of 15% of its yearly revenue.  

45 

 
                                                           
According to EUIPO data, the proposed adjustment of fees following sub-option 3.1 or 
3.2  does  not  promise  to  cause  significant  (structural)  negative  budgetary  results  with 
respect  to  RCD  related  income  and  expenditure  only.  Detailed  information  on  the 
evolution  of  the  EUIPO  budget  as  consequence  of  the  fee  adjustments  is  provided  in 
Annex 7. 

Impacts on National IP offices 

In addition,  with  a view to  the relation  of coexistence between the Community and the 
national design systems, it is necessary to also look at the fee levels of national IP offices 
and  compare  those  with  the  RCD  fees.  The  creation  of  excessive  benefits  of  the  latter, 
resulting in  a too  strong approximation with the fees demanded at  national  level, could 
have  the  undesired  effect  that  the  financial  advantages  of  registering  their  designs  as 
RCDs  weigh  up  to  any  possible  disadvantage  of  the  RCD  system  or  the  advantages  of 
seeking national protection regardless of the filer’s actual business needs. This would go 
against the intention of the Union legislator whereby national design systems shall not be 
replaced by the RCD regime.  

National design registrations are widely used. In 2019 there were around 120,000 filings 
at national IP offices, more than to EUIPO. Businesses and especially SMEs participating 
in the Design evaluation welcomed the coexistence of national and EU systems. National 
registration  was  seen  as  often  providing  the  adequate  territorial  coverage,  allowing  for 
best (strategic) protection of IP according to individual needs and size of company.147 

A reduction of the basic RCD registration fee would not put coexistence at risk. It is true 
that this fee cut would bring the RCD registration fee level closer to the registration fee 
level  of national  offices  for domestic filings. However,  a reduced RCD registration fee 
would still keep a clear and sufficient distance from the comparable fee at national level. 
The  indicative  table  in  Annex  8  shows  the  levels  of  design  fees  requested  in  each 
Member  State.  Taking  into  account  the  actual  filing  volumes  of  national  (regional) 
designs shown in the same Annex, the average cost of a national design in 2019 was well 
below  EUR  100  for  an  electronic  filing.  This  average  cost  for  registering  a  national 
design is substantially lower than the basic fee of EUR 350 to be paid for the registration 
of a RCD. 

Under  the  current  system  the  basic  fee  of  EUR  350  is  equal  to  (the  total)  average 
electronic fees of 4 national offices. The proposed fee of EUR 250 is equivalent to (the 
total) average fees in almost 3 Member States.  

The aforesaid also applies if one considers the highest current national fees for  a single 
design application equalling to EUR 250 (FI). The national offices currently charging an 
application  fee  the  amount  of  which  is  quite  high  compared  to  the  level  of  the 
corresponding RCD fee would be free to adjust their fee levels accordingly (by reducing 
the  basic  registration  fee)  and  ensure  a  more  favourable  ratio  compared  to  the  EUIPO 
basic registration fee. 

It  is  also  noteworthy  that  during  the  last  decade  the  number  of  design  applications  to 
national  offices  remained  remarkably  stable  at  around  120,000  a  year  despite  constant 

147 See also Annex 13 for more in-depth analysis of two systems coexistence. 

46 

 
                                                           
growth in RCD application. This could suggest that RCD is not undermining demand for 
national protection.  

6.4 Options for further harmonisation  

The  current  scope  of  harmonisation  of  industrial  design  laws  in  Europe  is  significantly 
restricted as the DDir follows a minimum harmonisation approach by limiting its scope 
to selected substantive law aspects (baseline). The persisting negative effects associated 
with  this  option  have  been  clearly  described  under  the  'problem  definition'  in  Section 
2.1.2 above.  

The  First  Public  Consultation  clearly  revealed  the  most  relevant  areas  for  further 
harmonisation.  Accordingly,  the  approximation  exercise  should  focus  on  the  most 
significant  divergences  in  design  laws  and  procedures  causing  major  problems  to  the 
users  at  both  national  and  EU  levels,  as  described  above  in  section  5.2.3  (Option  4.1). 
Since  only  a  limited  scope  of  changes  would  need  to  be  done  in  Member  States'  laws 
(usually in the form of mere adjustments of existing provisions and not by creating new 
rules), it is expected that the alignment exercise could be done within a reasonable period 
of time. Furthermore, to the extent necessary such an approximation of Member States' 
laws  could  be  pursued  together  with  identical  modifications  to  the  RCD  regime  which 
would ensure coherence  between the two systems. This  was  not possible at  the time of 
the adoption of the DDir as the CDR was adopted three years later. In the meantime, the 
RCD system has proved well its merits  (as shown by the recent  evaluation) and should 
therefore serve, as much as possible and appropriate, as a benchmark for future alignment 
of national laws, as it was also the case when aligning Member States’ laws relating to 
trade marks.  

Under  Option  4.2,  the  scope  of  the  approximation  exercise  would  not  be  limited  to 
particular aspects of design laws but would encompass the whole range of provisions on 
substantive  law,  procedures  and  practices.  Accordingly,  the  design  systems  in  Europe 
would evolve from partially coherent and aligned to fully harmonised regimes. However, 
the analysis of existing problems (Section 2.1.2) has not demonstrated an apparent need 
for a full scale approximation of all design provisions. As a result, option 4.2 would be 
disproportionate  to  the  actual  needs.  Moreover,  such  a  scenario  would  necessitate  far 
reaching  changes  at  Member  States'  level,  involving  not  only  amendments  to  national 
design laws but possibly also to civil, administrative and other laws.  

When it comes to the implementation of options 4.1 and 4.2, one could consider that the 
desired  approximation  of  design  laws  and  procedures  could  be  achieved  without  a 
legislative intervention at the EU level. In this case, Member States would have to agree 
on a common approach/benchmark and align, accordingly, their laws and procedures on 
a  voluntary  basis  (sub-options  4.1a  and  4.2a).  However,  the  achievement  of  the 
operational objectives identified in Section 4.2 is highly unlikely. Firstly, such a process 
would  be  very  lengthy  given  the  wide  range  of  existing  divergences  between  national 
laws.  The  duration  and  outcome  of  such  an  exercise  would  fully  depend  on  the 
commitment of all Member States and their willingness to find common approaches. It is 
questionable how strong the incentives  for this would be, taking into consideration that 
further  harmonisation  is  called  for  by  industry  but  not  by  national  administrations. 
Moreover,  it  would  be  very  difficult  to  arrive  at  a  unanimous  decision  among  the  27 
Member  States.  Therefore,  the  process  would  more  likely  result  in  lowest  common 
denominator  solutions  than  the  most  appropriate  ones.  Moreover,  it  might  be  easier  to 

47 

 
find a common approach on the less controversial issues whereas there would not be any 
guarantee  that  the  most  serious  problems  would  be  properly  addressed.  Finally,  the 
objective  of  achieving  coherence  between  national  laws  and  the  RCD  system  would 
remain out of the reach of this exercise.  

Accordingly,  it  appears  more  appropriate  to  pursue  harmonisation  by  means  of  an  EU-
driven  action,  i.e.  a  legally  binding  instrument,  to  ensure  the  achievement  of  the 
identified objective as regards in particular substantive design laws and procedures (sub-
options  4.1b and  4.2b). An exception should however be made  with  respect  to selected 
very  technical  issues,  such  as  the  divergent,  detailed  formality  requirements  for  the 
representation of designs. While it is for example appropriate to abolish the requirement 
of  (static)  graphic  or  photographic  reproduction  altogether  by  legislative  harmonisation 
in the DDir148 to remove legal constraints at Member States’ level149, and allow so for the 
outstanding alignment to the digital age, the use of the existing cooperation framework to 
foster convergence of practices and tools under Article 152 of the EUTMR seems more 
suitable for converging on specific technical standards. The latter would allow ensuring 
certain  flexibilities  to  keep  abreast  with  technical  advancement,  whilst  safeguarding 
harmonised standards enacted by the competent national authorities, thereby also further 
improving collaboration within the EUIPN.  

Impacts on users of the registration system 

Further harmonisation of national laws, in particular procedures is strongly supported by 
user  organisations  that  represent  both  large  and  small  design  owners,  as  well  as  their 
agents,  as  the  feedback  to  the  two  Public  Consultations  clearly  showed.  Enhanced 
harmonisation is expected to have an overwhelmingly positive effect on all those users of 
the  design  protection  systems.  Moreover,  there  are  indications  that  the  impact  of  the 
proposed changes will be even more significant and positive for SMEs than for LEs. As 
described  in  Section  2.1.2  (problem  definition),  given  the  current  low  level  of 
harmonisation,  applicants  active  in  certain  Member  States  are  disadvantaged  vis-à-vis 
applicants in other Member States and those that apply for a RCD  in terms of speed of 
registration, access to and costs of the system.  

The proposed abandonment  of  ex-officio examination of prior art also  at national  level 
promises to significantly reduce the duration of registration proceedings in those Member 
States where it is still carried out (CZ, FI, HU, RO, SK). Businesses will thus be able to 
ensure protection much  faster  and  at  lower costs.  In CZ this would  affect  between 150 
and 250 applications each year, in Finland between 100 and 140, around 130 in Hungary, 
from 100 to 170 in SK, and, between 270 and 370 in RO150. Altogether for around 750 to 
1000  applications  annually  in  the  EU,  the  design  registration  time  could  be  more  than 
halved (based on comparison with an average registration time in countries without prior 
art examination). 

148 This would equal the abolition of the requirement of graphic representation in the trade mark reform. 
149 As identified in the context of cooperation projet CP6, see supra note 86. 
150  Industrial  Property  Office  of  the  Czech  Republic,  Annual  Reports  2019  and  2020;  Finish  Patent  and 
Registration  Office  website;  Hungarian  Intellectual  Property  Office,  Annual  Report  2018-2019;  The 
Industrial  Property  Office  of  the  Slovak  Republic,  Annual  Report  2019;  State  Office  for  Inventions  and 
Trade marks Romania, Annual Report 2019. 

48 

 
                                                           
Moreover, companies who seek design protection under several national laws depend to a 
large extent on external expertise. In this context, it is generally perceived, on the basis of 
contacts  with  stakeholders,  that  SMEs,  that  do  not  have  in-house  IP  experts,  often  pay 
substantially more when it comes to "advisers" fees compared to larger companies which 
have experienced in-house employees. According to data provided by the Member States 
for the EUIPN DesignView database, around 45% of applications at national  IP offices 
(or around 60,400 applications) used a legal representative in 2019.  

Ensuring  for  example  that  all  Member  States  provide  quick  and  efficient  office-based 
procedures to get an invalid design registration cancelled without having to go to court151 
at  much  higher  expense  and  greater  delay  should  be  clearly  beneficial  for  both 
competitors and right holders as the following example of compared costs for respective 
proceedings for trade marks in Greece illustrates.  

Table 6.6. Costs of invalidity proceedings in Greece 

Judicial design invalidity 
proceedings (first instance only) 

Administrative trade mark invalidity 
proceedings (first instance only) 

Official costs 
Approx. EUR 200 (including 
process-server fees) 
EUR 114 (plus process-server fees 
etc., in total approx. EUR 200) 

Professional fees 
EUR 6,000 to  
EUR 12,000 
EUR 2,000 to 
 EUR 5,000 

Source: ECTA data152, comparable complete information not available for other Member States, mainly as 
Member States are still in transposition period and system and reporting is not yet set up everywhere. 

The  introduction  of  office-based  design  invalidity  proceedings  in  Germany  in  2015 
serves as good example of substantial cost benefits achieved for businesses. While in the 
past  for  judicial  design  invalidity  proceedings  court  fees  of  EUR  1,638  were  to  be 
paid153, since the reform of legislation there only an official fee of EUR 300 is payable to 
the German Patent and Trade Mark Office for the filing of an application for declaration 
of invalidity.  

In response to the Second Public Consultation an overwhelming majority of respondents, 
including  associations  of  IP  right  owners  and  IP  attorneys  and  agents  expressed  strong 
support for making the provision of such office-based invalidity procedures mandatory at 
national level. In that context, the establishment of office-based cancellation proceedings 
in the area of trade marks were much praised to have been an effective means to reduce 
costs and burdens for businesses, and SMEs in particular.  

Impacts on National IP offices  

Option  4.1b  would  imply  the  obligation  for  Member  States  to  adapt,  accordingly,  their 
national legislations. Considering the heterogeneity in design systems, it is impossible to 
draw a general conclusion, for example, as to whether these adaptations would be more 
burdensome for small national offices than for big ones or vice versa.  

In terms of cost, because of the heterogeneity of national design systems, it is assumed 
that  certain  national  offices  would  bear  variable  additional  costs  linked  to  further 

151  For  Member  States  providing  office-based  invalidity  procedures  on  one  side  and  those  providing  for 
judicial invalidity procedures before the competent court on the other, see supra notes 80 and 81. 
152 The indicated amounts of fees may fluctuate significantly, depending on the complexity of the case and 
the  professional  representation  obtained.  They  are  based  on  expert  experience  and  assume  average 
complexity of the case at issue.  
153 This concerned a case of average value of dispute of EUR 50,000. 

49 

 
 
                                                           
harmonisation  efforts  in  the  short  to  medium  term.  Such  costs  and/or  cost  savings  for 
each and every national design system can only be calculated at national level in the light 
of the peculiarities of each design system. However, most changes in the EU legislation 
would  not  entail  major  changes  to  existing  laws  and  essentially  bring  more  clarity, 
consistency and legal certainty without any significant impact on resources and structures 
(see Annex 5, Section 4).  

The  few  changes  that  might  have  a  significant  impact  on  some  national  systems  relate 
foremost to the setting up of administrative invalidity procedures in the Member States 
where  such  procedures  do  not  already  exist.  The  establishment  of  such  office-based 
procedures  might  involve  substantial  expenses  for  smaller  IP  Offices.  This  could  be 
particularly problematic  in  countries where only  very  few invalidity cases  are currently 
brought before their courts. A reason for such low numbers could however be precisely 
the  existing  lack  of  efficient  proceedings  to  contest  invalid  registrations.  In  any  case, 
office-based  invalidity  procedures  have  already  been  established  everywhere  for  the 
cancellation of trade marks in transposition of the reformed Trade Mark Directive such 
that  it  should  be  possible  to  use  synergies  in  that  context.  Moreover,  and  as  much 
supported  by  stakeholders  in  response  to  the  Second  Public  Consultation,  cooperation 
between the EUIPO and national IP offices could be extended appropriately to assist in 
capacity  building  and  cushion  negative  impacts  on  that  part  of  smaller  IP  offices  with 
only few cases to deal with.  

Option 4.1b would contribute to improving the efficiency and effectiveness of procedures 
at European IP offices and eventually lead to significant cost savings. As such, it would 
also increase the competitiveness of national offices and allow them to extend the scope 
of cooperation with OHIM and other IP offices to the procedural areas concerned (such 
as that concerning invalidity of a design). Data supporting such costs and/or cost savings 
are however not available.  

7. 

HOW DO THE OPTIONS COMPARE? 

The  following  tables  provide  information  comparing  the  policy  options  in  light  of  the 
effectiveness and efficiency criteria as well as impact on most affected stakeholders. 

Except for Option 2 whose efficiency depends on choice of option 3, there is no impact 
of  policy  options  on  effectiveness  or  efficiency  of  other  options.  Thus  they  can  be 
considered independently of each other. 

Table 7.1 Comparison of policy options against effectiveness and efficiency criteria 

Option 

Effectiveness (contribution to achieving objectives) 

Baseline 

Objective 1: Opening up the 
spare parts aftermarket to 
competition 

(0) Entry cost is increasing thus 
status quo may result in less 
competition in the future 
Potential brake for the 
development of repair markets 

Objective 3: Enhancing 
complementarity and 
interoperability between the 
RCD and national design 
systems 

(0) Divergent rules remain in 
place (due to narrower scope of 
RCD rights businesses will 
continue using national design 
regimes instead of RCD system 
despite the latter suiting EU-wide 
activity much better)  

Efficiency 
(costs and benefits) 

Net effect: (0) 
Cost for consumers: EUR 415-663m per year, 
diminishing with time if more countries decide 
to liberalise (e.g. FR from 2023 for new 
designs only) 

50 

 
 
 
Option 1.1  
Full liberalisation 
for all designs 

(++) Most benefits to customers 
In line with EU antitrust regime 
Legal certainty from day 1 
Unclear impact on investment 

(++) Full harmonisation 

Option 1.2 
Instant full 
liberalisation for 
new designs 
followed by full 
liberalisation for old 
designs after 
transitional period 

(+) During the 10 year 
transition, benefits to 
consumers limited to new 
deigns 
Transition allows firms to 
accommodate 
Limited legal certainty during 
transition period 
Unclear impact on investment 

(+) Full harmonisation will be 
achieved after the transition 
period of 10 years 

Option 1.3 
Full liberalisation 
for new designs 

(0/+) Existing designs can be 
protected up to 25 years, 
liberalisation afterwards 
Limited legal certainty 
Unclear impact on investment 

(0) Full harmonisation will not 
be achieved until existing designs 
are on the market (up to 25 years) 

Net effect: (++) 
Benefit to consumer: EUR 415-663m per year 
Cost for VM:  loss of income corresponding to 
consumer benefit resulting from increased 
competitive pressure; 

Net effect: (+) 
Benefit to consumers: (+) During the 10 year 
transition each year benefits will increase by 
EUR 4 to 13 m per year to reach up to 10-20% 
of Opt. 1.1 value. After the transition period 
annual benefits will be net present value of 
Opt. 1.1. (EUR 340-544m* after 10 years); 
Cost for VM: loss of income corresponding to 
consumer benefit resulting from increased 
competitive pressure; 

Net effect: (0/+) 
Benefit to consumer: (+) After first 10 years 
10-20% of Opt.1.1 benefits, after 15 years 15-
30%, after 20 years 20-40%. EUR 415-663m 
per year only after current designs no longer 
available on the market, thus far lower benefit 
in discounted net present value terms (EUR 
253-404m after 25 years*).  
Cost for VM: loss of income corresponding to 
consumer benefit resulting from increased 
competitive pressure; 

Legend: ++ significant positive impact; + positive impact; 0 neutral; - negative impact; -- significant negative impact;  
* discount rate: 2% ECB inflation target 

Table 7.2 Comparison of policy options against effectiveness and efficiency criteria 

Option 2 
Simplification and 
streamlining of 
RCD procedures 

Option 3 
Lower RCD 
registration fee and 
easier multiple 
applications with 
bulk discount 

Sub-option 3.1 

Objective 2: Improving accessibility, 
efficiency and affordability of RCD 
protection 

(+) Easier/safer access to protection due 
to abolition of unity of class requirement 
for multiple applications and new 
standards for design representation (less 
deficiencies); procedural alignment with 
EUTM procedures will increase 
efficiency  

(+) Lower fees for basic protection 
Higher discounts for including several 
designs in one application (multiple 
application) 
Removal of unity of class requirement 
will make it easier to use multiple 
applications and use discounted fees 

Objective 3: Enhancing 
complementarity and 
interoperability between 
the RCD and national 
design systems 
(+/0) Update of RCD filing 
regime will also boost 
convergence of practices 
and technical standards with 
MS 

(0) Major shift from 
national to RCD filings are 
not expected. Although on 
average for RCD fee one 
could buy protection in 3 
EU MS, instead of 4 
currently.  

(++) 
More affordable access to basic 
protection should encourage usage. 
Coupled with proportional increase of 
renewal fees for protection up to 20 and 
25 years 

(0) 
Proper balance of 
coexistence is safeguarded. 
RCD system will be slightly 
more attractive 

Sub-option 3.2 

(++/-) 
Even more affordable access to basic 

(0) 
Proper balance of 

51 

Efficiency 
(costs and benefits) 

Net effect: (++) 
Benefits in 2024: Dependent on fee 
structure: current: EUR 2.4m, Opt. 3.1: 
EUR 1.7m, Opt. 3.2.: EUR 1.8m, EUR 
1million through new representation 
standards, rest through facilitation of 
multiple RCD applications ) 
Net effect: (+) 
Benefit: lower fees for basic RCD 
protection and for the first renewal 
Cost: higher fees for RCD 3rd and 4th 
renewal (protection up to 20 and 25 years); 
cap at 50 designs for single application 
Potential for lower income to EUIPO 
(subject to uncertain proceeds from 4th 
renewal) 
Net effect: (++) 
Benefit: in 2024 - Basic protection EUR 
4.9m, 1st renewal EUR 1.1m 
Potential increase in applications/design 
owners in 2030 from 0 to 15% 
Cost in 2024: in 2024 - 2nd renewal EUR 
0.6m, 3rd: EUR 1.5m, 4th: 2.3m 
Net effect: (++) 
Benefit: in 2024 - Basic protection EUR 

 
 
 
 
Objective 2: Improving accessibility, 
efficiency and affordability of RCD 
protection 

protection should further encourage 
usage. Coupled with rather 
disproportional increase of renewal fees 
for protection up to 20 and 25 years 

(+) While further approximation of 
national laws shall foremost render 
national systems more accessible, greater 
coherence with RCD (and resulting 
increased potential for expansion of 
convergence of EUIPO and EU MS 
offices practices) will contribute to 
increasing also accessibility and 
transparency of RCD system.  

Option 4.1 
Partial further 
approximation of 
national rules and 
their coherence with 
RCD system 

Sub-option 4.1a 
Voluntary 

(+/0) Less apt to contribute to increasing 
also accessibility and transparency of 
RCD system, especially in light of 20 
years experience with voluntary 
liberalisation of spare parts.  

Sub-option 4.1b 
Mandatory 

(+)More apt to contribute to increasing 
also accessibility and transparency of 
RCD system 

Option 4.2 
Full approximation 
of national laws and 
procedures and their 
coherence with 
RCD system 
Sub-option 4.2a 
Voluntary 

(++) Full harmonisation of national laws 
in alignment with RCD system will 
significantly contribute to increasing also 
accessibility and transparency of RCD 
system 

(+)Less apt to contribute to increasing 
also accessibility and transparency of 
RCD system 

Sub-option 4.2b 
Mandatory  

(++)More apt to contribute to increasing 
also accessibility and transparency of 
RCD system 

Efficiency 
(costs and benefits) 

7m, 1st renewal EUR 0.5m 
Potential increase in applications/design 
owners in 2030 from 0 to 21% 
Cost: in 2024 - 2nd renewal EUR 1.1m, 3rd: 
EUR 2m, 4th: 2.8m 
Net effect: (++) 
Benefits: 
Facilitation of multiple applications (not 
quantifiable at national level) 
Abolition of ex-officio examination of prior 
art should at least halve duration of 
registration procedure for up to 1000 
applicants a year  
Office-based invalidity procedures can be  
up to three times cheaper than court based 
(due to lower lawyer fees  - EL example) 
Costs: Implementation costs for national 
offices (reduced income and setup costs for 
new procedures) 
Net effect: (-/0) 
Benefits: Consistent principal rules 
Costs: much time and effort needed 

Net effects (+) 
Benefits: Consistent principal rules 
Costs: little time and effort needed 

Objective 3: Enhancing 
complementarity and 
interoperability between 
the RCD and national 
design systems 
coexistence is safeguarded. 
RCD system will be slightly 
more attractive 

(++) Significant 
enhancement of 
complementarity and 
interoperability of design 
systems. Larger scope of 
normative harmonisation 
will also allow convergence 
of EUIPO and EU MS 
offices practices to be 
extended accordingly, 
thereby further potentiating 
level of consistency and 
predictability. 

(-/0) Less apt to achieve 
enhanced complementarity 
and complementarity except 
in very technical areas 
requiring flexibility to keep 
abreast with technological 
advancement (e.g. technical 
standards for representation 
of designs). 
(++) More apt to achieve 
enhanced complementarity 
and complementarity not 
being limited to lowest 
common denominator 
solutions. 
(++) Full complementarity 
and interoperability of the 
design protection systems 

(0/-) Less apt to achieve full 
complementarity and 
complementarity not being 
limited to lowest common 
denominator solutions. 
(++) More apt to achieve 
full complementarity and 
complementarity not being 
limited to lowest common 
denominator solutions. 

Net effect: (--) 
Benefits: fully consistent laws 
Costs: too much time needed, excessive 
costs, and disproportional to actual needs 

Net effect (--) 
Benefits: fully consistent laws 
Costs: too much time needed, excessive 
costs, and disproportional to actual needs 

Legend: ++ significant positive impact; + positive impact; 0 neutral; - negative impact; -- significant negative impact; 

52 

 
 
 
Table 7.3 Comparison of the impact of policy options 1 on stakeholders 

Vehicle producers 

Spare parts producers 
OEM 

Spare parts producers 
independent 

Authorised 
Repairers & Distributors 

Independent 
Repairers & Distributors 

Citizens/Customers 

Baseline 

0  

0 

0-  

0 

0 

0  

Option 1.1  
Full liberalisation for all 
designs 

(-) Price competition in all 
MS; loss of market power; 
possible modest loss of 
market shares for body 
parts; 

(++) Economies of scale due 
to access to entire EU 
market; potentially more 
freedom to operate in the 
aftermarket;  

(++) Economies of scale due 
to access to entire EU market;  

(N/A) Freedom to choose 
parts for repair; potential 
loss on distribution of VM 
spare parts;  

(++) Possibility to offer 
alternatives, possible 
consolidation of 
distribution channels and 
workshops; benefits form 
legal certainty; 

(++) Instant freedom of choice 
as regards spare parts 
throughout the EU; 

Costs:  Loss of income corresponding to consumer benefit resulting from increased competitive pressure; 

Benefits: Annual cost savings of between EUR 415m and 664m for clients in countries currently without a repair clause 

Option 1.2 
Full liberalisation for 
new designs + old after 
10 years  

(short run: 0, long run: -) 
Competition for new designs 
(connected cars); for 
existing designs (combustion 
engine cars) delayed 
competition; status quo in 
the short run; 

(+) Impact delayed in time, 
compared to Option 1.1;  

(+) Impact delayed in time, 
compared to Option 1.1; 

(N/A) 

(+) Impact delayed in 
time, compared to Option 
1.1;  

(short run: 0, long run: ++) 
Both non protected (new) and 
protected (old) spare parts on 
the market during 10 year 
transition, leading to confusion 
and potential (unintended) 
infringements; full freedom to 
choose afterwards 

Costs:  Loss of income corresponding to consumer benefit resulting from increased competitive pressure; 

Benefits: During the 10-year transition each year benefits will increase by EUR 4 to 13 m per year to reach up to 10-20% of Opt. 1.1 value. After the transition period annual benefits will be 

net present value of  Opt. 1.1: EUR 340-544m*; 

Option 1.3 
Full liberalisation for 
new designs 

(short run: 0, long run: -) 
Only new spare parts 
designs liberalised, for 
existing ones monopoly 
possible for up to 25 years; 

(+) Impact delayed in time, 
compared to Option 1.2. 

(+) Impact delayed in time, 
compared to Option 1.2. 

(--) Legal uncertainty; 

(N/A) Keep control in 
protected markets over the 
distribution of the parts 
covered under the old 
designs (combustion engine 
cars) 

(medium run: 0, long run: ++) 
Both non protected (new) and 
protected (old) spare parts on 
the market for up to 25 years 
leading to confusion and 
potential (unintended) 
infringements; full freedom to 
choose afterwards 

Costs:  Loss of income corresponding to consumer benefit resulting from increased competitive pressure; 

Benefits: After first 10 years 10-20% of Opt. 1.1 benefits, after 15 years 15-30%, after 20 years 20-40%. EUR 415-663m per year only after current designs no longer available on the 

market, thus far lower benefit in discounted net present value terms (EUR 253-404m after 25 years*).  

Legend: ++ significant positive impact; + positive impact; 0 neutral; - negative impact; -- significant negative impact; * discount rate: 2% ECB inflation target 

53 

 
 
 
 
Table 7.4 Comparison of the impact of policy options 2 to 4 on stakeholders 

Firms applying for protection 

Baseline 
Option 2 
Simplification 
and streamlining 
of RCD 
procedures 

0 
(++)Easier access and savings 
for firms due to lower 
deficiency potential and 
extended, less costly access to 
multiple applications, and 
greater predictability. 

Individuals (+SMEs) applying 
for protection 
0 

(++)Particularly easier access 
and savings for 
individuals/SMEs due to lower 
deficiency potential and 
extended, less costly access to 
multiple applications, and 
greater predictability.  

Costs: EUR 0 

EUR 0 

Benefits: EUR 160 to 200 per applicant, for up to 14% of applicants due 

to simplified representation 
EUR 492, 234 and 281 due to facilitation of multiple RCD 
applications in case of current fee structure, Opt. 3.1 and 3.2 
respectively. Affecting up to 20% of applicants 

IP offices 

0 

(++)EUIPO able to run RCD 
operations more efficiently (less 
deficient applications to treat; 
smoother running of workflows and 
back office IT landscape due to 
alignment with EUTM procedures); 
facilitation of task to foster 
convergence of practices and tools 
in cooperation with nat. IP offices 
(EUIPO serving as benchmark). 
Loss corresponding to benefits of 
firms and individuals 

Reduction of deficient applications 
and abolition of unity of class 
requirement reduces time and cost 
of examination and correspondence.  

Citizens 

0 

(+/0)No significant 
(quantifiable) impact; 
consumers to profit from 
wider variety of products 
though, as designs foster 
product differentiation 

Reduction in fees for IP 
lawyers corresponding to 
benefits to firms and 
individuals 
Not quantifiable 

(++) More affordable access and 
savings for individuals and 
SMEs tending to file fewer 
designs, and for shorter period. 

(-/0)Loss of revenue for EUIPO; no 
major impact on nat. IP offices 
through potential shift from nat. to 
RCD filings (nat. IP offices free to 
cushion effects by lowering own 
fees).    

(+/0)No significant 
(quantifiable) impact; 
consumers to profit from 
wider variety of products 
though, as (more) designs 
foster product 
differentiation 

Benefits:  

(+/-) More affordable access 
and savings for firms filing 
fewer designs, and for shorter 
period, increased cost for firms 
filing large numbers of designs 
and for long period. 

Option 3 
Lower RCD 
registration fee 
and easier 
multiple 
applications 
with bulk 
discount 
Opt. 3.1 Costs*: EUR 74, 478 and 1398 for 

2nd,3rd and 4th renewal 
respectively 
EUR 144 per application and 
EUR 74 for 1st renewal 

Opt. 3.1. 
Benefits* 

EUR 47, 305 and 893 for 2nd,3rd 
and 4th renewal respectively 

EUR 132 per application and 
EUR 47 for 1st renewal  

Opt. 3.2 Costs*: EUR 147, 625 and 1692 for 

2nd,3rd and 4th renewal 
respectively 
EUR 211 per application and 
EUR 37 for 1st renewal 

Opt. 3.2. 
Benefits* 

EUR 94, 399 and 1081 for 
2nd,3rd and 4th renewal 
respectively 
EUR 166 per application and 
EUR 23 for 1st renewal 

Option 4.1 
Partial further 
approximation 
of national rules 
and their 
coherence with 
RCD system 
4.1a voluntary 
4.1b mandatory 

(++)Easier, less costly access 
to protection, incl. through 
combined use of nat. and RCD 
systems; greater predictability; 
easier, less costly way to 
defend against/cancel 
registered designs not meriting 
protection; lower costs in 
managing IP portfolios. 
Aforesaid positive impacts 
only (timely) guaranteed 
pursuing legislative 
harmonisation (sub-option 4.2).  

(++)Particularly easier, less 
costly access to protection, incl. 
through combined use of nat. 
and RCD systems; greater 
predictability (less need for 
external expertise); easier, less 
costly way to defend 
against/cancel registered designs 
not meriting protection; lower 
costs in managing IP portfolios. 
Aforesaid positive impacts only 
(timely) guaranteed pursuing 
legislative harmonisation (sub-
option 4.2). 

Costs: Adaptation to new system, including learning process 

54 

Equal to benefits for firms and 
individuals. EUIPO estimates at 
EUR 3.2m 
Equal to cost for firms and 
individuals. Proceeds from 4th 
renewal may be higher than costs 
Equal to benefits for firms and 
individuals. EUIPO estimates at 
EUR 3.16m 
Equal to cost for firms and 
individuals. Proceeds from 4th 
renewal may be higher than costs 
(++) National IP Offices becoming 
more attractive and competitive at 
bearable, proportional implementing 
cost; facilitation of EUIPO task to 
foster convergence of practices and 
tools in cooperation with nat. IP 
offices. 
Aforesaid positive impacts only 
(timely) guaranteed pursuing 
legislative harmonisation (sub-
option 4.2). 

EUR 0 

Not quantifiable 

EUR 0 

Not quantifiable 

(0)No significant 
(measurable) impact; 
consumers indirectly to 
profit from wider variety 
of products though, as 
(more) designs foster 
product differentiation. 

Setting up of administrative 
invalidity procedure in Member 
States where it does not exist 

Reduction in legal fees 
corresponding to benefits 
of firms and individuals 

 
 
 
  
Benefits: Lower need of legal expertise could affect up to 45% of 

Not quantifiable  

Not quantifiable 

Option 4.2 
Full 
approximation 
of national laws 
and procedures 
4.2a voluntary 
4.2b mandatory 

applications. Savings on IP office-based invalidity procedures 
from EUR 4,000 to 7,000 per case (based on EL example) 
(+/--)As Option 4.2 would 
(+/--)As Option 4.2 would 
necessitate very far reaching 
necessitate very far reaching 
changes at MS’s level, firms 
changes at MS’s level, firms 
would have to wait 
would have to wait 
(unreasonably) long time for 
(unreasonably) long time for 
benefits to materialise; far 
benefits to materialise; far 
reaching changes would not 
reaching changes would not 
correspond to actual needs. 
correspond to actual needs. 

Costs: Potentially higher than 4.1. due to magnitude of changes 
Benefits: Potentially higher than 4.1. due to magnitude of changes 

(--)Excessive and disproportional 
burdens and implementing costs for 
nat. IP Offices and other national 
authorities; no flexibility left for 
tailored rules taking account of legal 
traditions and other national 
specificities. 

(+/0)No significant 
(quantifiable) impact; 
consumers to profit from 
wider variety of products 
though, as (more) designs 
foster product 
differentiation 

Legend: ++ significant positive impact, + positive impact, 0 neutral, - negative impact, -- significant negative impact; *- weighted averages based 
on distribution of designs per application in 2019/20 

8. 

PREFERRED OPTION 

8.1 Conclusion on impacts and coherence 

Based  on  the  analyses  carried  out  in  the  previous  sections,  the  preferred  set  of  options 
includes Option 1.2, Option 2, Sub-option 3.1 and Sub-option 4.1b. 

Option  1.2  is  considered  to  be  the  most  proportional  one  to  achieve  complete 
harmonisation in the internal market on the principle of liberalisation.  It is true that the 
price and competition benefits stemming from Option 1.1 are more immediate, however, 
Option 1.2 has the following advantages. First, it is in line with the spirit of the transitory 
agreement  on the design regime on spare parts agreed in the DDir, aiming  at  complete 
liberalisation  of  the  spare  parts  market  in  the  EU.  Second,  by  offering  a  transitional 
period it allows VMs to adjust their market conduct with minimum risk or disruption to 
investment and innovation. Third, it is adequately prudent when it comes to the issue of 
fundamental rights and international obligations (see Section 8.2).  

This  option  also  is  in  line  with  the  Commission’s  intention  in  the  previous  proposal  in 
2004 as well as consistent and complementary with  the MVBER regime. Liberalisation 
of  the  spare  parts  market  will  help  to  ensure  effective  competition  in  the  vehicle  spare 
parts, service and repair markets and thus achieve benefits for enterprises and consumers 
in  the  automotive  aftermarkets.  Last  but  not  least,  Option  1.2  is  coherent  and 
complements  efforts  put  forward  in  the  Sustainable  Product  Initiative  that  aims  at 
promoting repairs and circular economy.  

The completion of the single market by opening up the entire EU spare parts aftermarket 
is  strongly  supported  by  independent  spare  parts  manufacturers  and  distributors, 
associations representing their interests, academia, as well as consumer organisations. 

With  a  view  to  making  RCD  protection  more  accessible  and  affordable  for  businesses 
and  keeping  abreast  with  technological  advancement,  Option  2  on  simplification  and 
streamlining  of  procedures  combined  with  Sub-option  3.1  on  fees  (not  involving  a  too 
drastic, disproportional increase of renewal fees compared to Sup-option 3.2), promises 
to  involve  positive  impacts  and  bring  clear  benefits  for  businesses,  in  particular  SMEs 
and individual designers. 

Sub-option 4.1b on further approximation of national provisions, in particular by adding 
principal procedural rules into the DDir in alignment with the CDR, will make it easier 
and less costly for firms and designers to obtain design protection across Member States, 
including through the combined use of national and RCD systems, and in the context of 
multijurisdictional  filing strategies.  This  option  will  further increase  predictability, help 

55 

 
 
reducing costs in managing multinational IP portfolios, and make it easier and cheaper to 
have invalid designs removed from the register. 

Going  for  mandatory  further  approximation  of  national  rules  in  the  areas  identified  by 
stakeholders  as  being  of  top  priority  will  have  also  additional  positive  impacts  on 
cooperation  between  the  EUIPO  and  national  IP  offices  under  the  existing  framework 
laid  down  in  Article  152  EUTMR  in  terms  of  facilitating  extension  of  convergence  of 
practice  and  the  development  of  common  tools  also  to  those  new  areas  (such  as 
concerning  invalidation  of designs). This  promises  to  further potentiate the net  benefits 
for  users  of  the  design  protection  systems  in  the  EU  while  enhancing  their 
complementarity and interoperability. 

Apart  from  Member  State  authorities  and  the  European  Parliament,  design  intensive 
industries  and  designers,  associations  of  design  right  holders  and  intellectual  property 
attorneys  and  agents  strongly  support  the  proposed  modernisation,  streamlining  and 
further harmonisation of the design protection systems in terms of the set of Options 2, 
3.1 and 4.1b. 

Additionally, the preferred set of options will be supported by substantial efforts within a 
wide range of awareness raising activities being carried out or planned by the EUIPO for 
the  future  in  order  to  increase  knowledge,  understanding  and  successful  use  of  IP, 
including  designs.  This  shall  contribute  to  further  boosting  the  uptake  of  registered 
design  protection  in  the  EU  and  strengthening  competitiveness  on  the  basis  of  future 
proofed, more accessible and predictable rules proposed in the present initiative.  

8.2 Compatibility with International Obligations 

Option  1.2  on  spare  parts  protection  would  also  be  fully  compatible  with  international 
obligations  of  the  Union  under  the  TRIPS  Agreement.  Article  26  TRIPS  allows  for 
limited  exceptions  to  the  protection  of  industrial  designs,  provided  that  they  do  not 
unreasonably  conflict  with  normal  exploitation,  and  do  not  unreasonably  prejudice  the 
interests  of  the  right  holder,  which  must  however  be  balanced  against  the  legitimate 
interests of third parties.  

It is considered that the repair clause to be introduced into the DDir complies with these 
requirements.  It would even be permissible to exclude design protection for spare parts 
altogether,  as  TRIPS  does  not  impose  a  particular  definition  of  objects  eligible  for 
protection154. At stake is indeed only an exception to protection confined to component 
parts  of  complex  products  which  are  needed  to  restore  the  appearance  of  a  complex 
product,  and  this  exception  only concerns  the  exercise of the right  when  such parts are 
used for repair purposes.  

The  interests  of  owners  of  existing  rights  are  adequately  and  beyond  any  reasonable 
doubt safeguarded through the grant of a ten-year transitional period during which they 
can still prevent third parties from using their designs also in the aftermarket. As already 
concluded above, the foreseen duration of that transitional period is  compliant  with  the 
minimum term of design protection to be provided for under Article 26(3) TRIPS. 

8.3 REFIT (simplification and improved efficiency) 

The following table summarises cost savings of the preferred option. 

154  Drexl,  Hilty,  Kur,  Design  Protection  for  Spare  Parts  and  the  Commission's  Proposal  for  a  Repairs 
Clause, IIC 2005, p. 448, p. 454. 

56 

 
                                                           
Table 8.1. REFIT Cost Savings – Preferred Option 

Description 

Annual Amount 

Comments 

Liberalisation of spare parts 
market (Opt. 1.2) 

EUR 340-544 
million  

Change of RCD fees (Opt. 3.1) 

EUR 1.6 million*  

Savings to customers, fully realised after 10-year 
transition period. During the 10-year transition 
each year benefits will increase by EUR 4 to 13m 
per year to reach EUR 40 to 130m in the last year. 

Consists of savings to those protecting for 5 to 10 
years of EUR 6.2 million (such protection period is 
more often sought by natural persons and firms 
without legal entity) and cost increases of EUR 4.6 
million to those protecting RCD from 15 to 25 
years. 

Other simplifications (e.g. 
means and requirements of 
design representation) (Opt. 2) 

Facilitation of multiple 
applications (Opt 2) 

EUR 1 million* 

Concerns around 14% of RCD applicants. Realised 
at initial application. 

EUR 0.64 million*  Concerns around 20% of RCD applicants. Realised 

No transfer fee 

EUR 0.63 million 

at initial application. 

Simplification for around 3000 designs that 
annually are transferred to different owner. 

Office-based invalidity 
procedure in national IP offices 

EUR 4,000 – 7,000 
per case 

Concerns those seeking to cancel an invalid design 
registration.  

No ex-officio examination of 
prior art in national IP offices 

Registration time cut 
in half 

Concerns around 1000 applications a year. 

* estimate for 2024, can be higher in subsequent years if demand for RCD protection increases (potentially 
by 15%) 

9.  

HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED? 

The  Commission  will  be  monitoring  the  market  for  spare  parts  to  see  whether  the 
envisaged  savings  have  materialised.  As  part  of  the  project  the  following  could  be 
envisaged:  i)  repetition  of  the  study  on  price  differences  between  Member  States;  ii) 
stakeholders  survey  to  gauge  behavioural  changes  of  customers,  strategies  of  VMs  and 
spare  parts  providers,  choices  and  recommendations  of  independent  garages.  The 
Commission  will  also  monitor  the  impact  of  the  spare  parts  liberalisation  on  other 
markets. 

As  regards  changes  to  the  EUIPO  fees  and  procedures,  the  Commission  will  be  using 
EUIPO annual reports. The Commission welcomes the change in EUIPO reporting that 
took  place  in  2021  to  include  disaggregation  of  designs  filings  per  SMEs155.  The 
Commission is in contact with the EUIPO to improve the statistics provided.  

In particular the following will be monitored: change in number of designs filings at the 
EUIPO,  the  usage  of  design  protection  by  SMEs,  change  in  number  of  multiple 
applications,  change  in  number  of  designs  with  renewed  protection  and  number  of 
renewals.  

In  terms  of  approximation  of  national  laws,  the  Commission  will  scrutinise  Member 
States’  notifications  of  transposing  measures  and  will  react  to  any  delays  or 
implementation  deficits  and 
inconsistencies.  The  Commission  will  calculate 

155 EUIPO (2021) “Consolidated Annual Activity Report 2020”, page 5. 

57 

 
                                                           
communicate  these  via  the  Single  Market  Scoreboard156.  When  all  rules  are  properly 
transposed  the  following  indicators  will  be  considered  for  evaluation:  the  option  and 
conditions  for  filing  a  multiple  application,  the  option  and  length  of  deferment  of 
publication, the existence of substantive examination, and the provision of administrative 
invalidity procedures. 

All  monitoring  and  reporting  activities  should  take  into  account  the  necessary 
transposition period as well as sufficient time for the market participants to accommodate 
to  the  new  situation.  Thus,  in  the  short  term  the  Commission  will  rely  on  information 
from stakeholders and Members States as regards implementation. As for the Regulation, 
a proper evaluation of the changes should be done five years after full implementation of 
all new provisions, including at the level of secondary legislation. 

Objectives 

Indicators 

Strengthened design protection 
(promote contribution to 
design excellence, innovation 
and competitiveness in the EU) 

Opening up the spare parts 
aftermarket to competition 

Improving the accessibility 
and affordability of 
Community design protection 

Enhancing complementarity 
and interoperability between 
the Community and national 
design systems, in particular 
through harmonisation of 
procedural rules. 

a) Measurement of increase of profitability of 
firms making use of strengthened design 
b) Measurement of price increase for consumers  
c) Measurement of increase of new designs (more 
new products on the market) 
a) Monitor consumer prices of spare parts 
b) Monitor availability of different types of spare 
parts 
c) Monitor frequency of repair versus purchase of 
new vehicle 
a) Measurement of cost savings by EUIPO (e.g. 
because less procedural mistakes are made by 
applicants due to i) deletion of unity of class 
requirement, ii) easier representation 
requirements, iii) shared IT systems with EUTM 
system) 
a) Number of remaining differences between 
national laws (transposition check) 
b) Evolution in companies’ direct cost for IP 
advice 
c) Average time needed to register an RCD 
(including average time needed for an invalidity 
procedure) – possible benchmark: average time 
in 5 best performing offices 

Sources of 
information 

Study 

Study 

EUIPO 

Transposition 
study 
Study 
IPO survey  
Evaluation study 
to support the 
review of the 
instrument 5 years 
after its date of 
application 

156 https://ec.europa.eu/internal_market/scoreboard/performance_by_governance_tool/transposition/index_en.htm  

58 

 
 
 
 
                                                           
ANNEX 1: PROCEDURAL INFORMATION 

1.  Lead DG, DEcide Planning/CWP references 

Lead DG: DG Internal Market, Industry, Entrepreneurship and SMEs 

Decide numbers of the underlying initiatives: PLAN/2020/8768 (Review of Community 
Design Regulation) and PLAN/2020/8769 (Review of Design Directive). 

2.  Organisation and timing 

The inception impact assessment was published on 24 November 2020. It was followed 
by  a  feedback  period  that  lasted  from  24  November  2020  to  12  January  2021.  Twenty 
nine stakeholders submitted feedback. 

The  Commission  held  a  public  consultation  from  29  April  to  22  July  2021.  This 
consultation was available on the Better Regulation Portal of the Commission and open 
to anyone who wished to reply. The public consultation received 105 replies through the 
EU survey and five via e-mail. 

The following DGs (Directorates General) have been invited to contribute to this impact 
assessment:  SG  (Secretariat-General),  COMP  (Competition),  EAC  (Education,  Youth, 
Sport,  Culture),  ENER  (Energy),  ENV  (Environment),  CNECT  (Communications 
Networks,  Content  and  Technology),  JRC  (Joint  Research  Centre),  JUST  (Justice  and 
Consumers),  SJ  (Legal  Service),  TAXUD  (Taxation  and  Customs  Union)  and  TRADE 
(Trade). The EUIPO also participated in the ISSG. The ISSG met four times in 2021 to 
give  an  update  on  the  ongoing  work  and  discuss  preliminary  versions  of  the  impact 
assessment report, together with all the supporting documents. 

3.  Consultation of the RSB 

The  RSB  was  consulted  in  an  upfront  meeting  on  27  May  2021.  The  present  impact 
assessment report was submitted to the RSB on 27/10/2021. The impact assessment was 
discussed  with  the  RSB  on  24/11/2021,  and  the  RSB  issued  a  positive  opinion  on 
26/11/2021.  Based  on  the  RSB  recommendations,  the  impact  assessment  has  been 
revised as follows: 

RSB recommendations 

Changes to the impact assessment 

(1) The report is not sufficiently clear why the current 
mixed national and EU design protection system needs 
to be maintained and protected. 
The report should make clear why it does not envisage 
an overall more efficient design protection system, by 
letting the EU system compete fully with the national 
systems. This could lead seemingly to lower fees and 
promote administrative efficiency, which would be to 
the benefit of companies and increase overall EU 
competitiveness. In this regard, the report should clarify 
to what extent the level of national fees should continue 
to play a limiting role on the reduction of EU fees. 
(2) Taking into account the relevant findings in the 
2020 evaluation on the lack of awareness of the 
possibilities for companies to use EU design protection, 
the report should better explain why it does not consider 
additional actions on awareness-raising in the context of 
this initiative. 
(3) The report should better explain the competitive 
effects that can be expected from cross-border spare 
parts internet sales under the baseline scenario. It 
should also better explain that the liberalisation of the 

Section 6.3 was enhanced with additional arguments and  
Annex 13 on Coexistence of national and EU systems 
was added 

Annex 12 on existing and planned awareness raising 
activities was added. 

Impact of internet sales of spare parts was added to the 
baseline scenario (Section 2.2.1). 

59 

 
spare parts aftermarket through the removal of design 
protection of spare parts is a necessary, but not a 
sufficient, condition for creating a well functioning 
internal market in spare parts. 
(4) The report should better explain the robustness and 
the uncertainties with regard to the estimates on the 
increase of the number of protected designs by 
changing the level of the fees, in particular with regard 
to the so-called ‘optimistic scenario’. 
(5) Given that the direct expenditures of the European 
Union Intellectual Property 
Organisation (EUIPO) directly attributable to the 
Registered Community Design only represent about one 
third of the relevant fee revenues, the report should 
clarify why it does not propose to reduce the fees for 
registered EU designs further. It should also explore the 
room for further reduction of the fees including through 
considering potential rationalisations and administrative 
overhead reductions at the EUIPO. 
(6) The report should better reflect the differences in 
views between key stakeholders on design protection of 
spare parts and explain how and why it took them into 
account. 

4.  Evidence, sources and quality 

The additional caveats on data limitations were added to 
Annex 9.5  

The rationale for not lowering the RCD fees further was 
added to Section 6.3. Examples of the EUIPO activities 
financed from the fee revenues were further highlighted 
(such as awareness raising campaigns or SME support). 

Annex 2a focusing on stakeholders views on spare parts 
liberalisation was added 

DG  GROW  conducted  and  contracted  several  studies  related  to  the  revision  of  the 
designs legislation. All the studies, with the exception of the study by Wolk After Sales 
Experts, were published prior to the online public consultation. 

The series of studies include: 

  Europe Economics (June 2015). Economic review of industrial design in Europe 

  Time.lex, Queen Mary - London, Spark Legal Network & Indiville (April 2016). 

Legal review on design protection in Europe 

  Mendis,  D.,  Nordemann,  J.D.,  Ballardini,  R.M.,  Brorsen,  H,  del  Carmen 
Calatrava  Moreno,  M.,  Robson,  J.  &  Dickens,  P.  (February  2020).  Intellectual 
property implications of the development of industrial 3D printing 

Two studies focus explicitly on spare part protection: 

  Herz, B. & Mejer, M. (2020). The effect of design protection on price and price 
dispersion:  Evidence  from  automotive  spare  parts.  Published  in  International 
Journal  of  Industrial  Organization  with  manuscript  available  online  14 
September 2021, In Press. 

  Nikolic,  Z.  (September,  2021).  Market  structure  of  motor  vehicle  visible  spare 
parts  in  the  EU.  Study  commissioned  to  Wolk  After  Sales  Experts  GmbH. 
Available at https://op.europa.eu/s/sMA8  

60 

 
 
 
 
ANNEX 2: STAKEHOLDER CONSULTATION  

1.  Introduction 

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’157 that  it will  revise the EU legislation on 
design protection. Alongside the publication of the IP Action Plan, an inception impact 
assessment158 was published for this initiative.  

The  review  follows  from  an  exhaustive  evaluation  of  the  EU  legislation  on  design 
protection159,  which  was  supported  by  a  comprehensive  public  consultation  and  two 
major economic and legal studies.  

The  evaluation  analysed  to  what  extent  the  current  EU  legislation  on  design  protection 
has achieved its objectives in terms of efficiency, effectiveness, relevance, coherence and 
EU added value.  

Consultation activities 

The Commission conducted a public consultation160 between 29 April and 22 July 2021 
with  the aim to  gather  further stakeholder evidence and views to  support  the review of 
the CDR and the DDir.  The public consultation  served as  complement to the extensive 
public  consultation  on  design  protection  already  carried  out  in  the  context  of  the 
evaluation.  More  specifically,  it  sought  to  obtain  views  of  all  those  affected  by  design 
protection in Europe on selected issues and potential policy options and their impacts.  

2.  Analysis of responses 

54% of the stakeholders161 considers that increasing clarity and transparency of rules and 
making them  future-proof would help  most in  raising the usage of design protection. 
45% of the stakeholders indicates that raising awareness about the availability, benefits 
and ways of protecting designs would help most in this. According to some stakeholders 
harmonising  registration  procedures  (35%),  streamlining  and  simplifying  registration 
procedures (24%) or adjusting fee levels or structure (18%) would help  most in raising 
the usage of design protection.  

As regards repair spare parts protection, the majority of the respondents to the Public 
Consultation considers that having different rules on this matter in the EU is a problem.  

More  than  1/4  of  the  stakeholders  (27%),  mainly  the  representatives  of  independent 
manufacturers  and  consumer  associations  argue  that  all  the  EU  Member  States  should 
open the market of ‘must-match’ spare parts for competition, covering both existing and 
new designs. They point out that the protection of ‘must-match’ spare parts constitutes an 

157 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020DC0760  
158 Inception Impact Assessment on the review of the Design Directive and Community Design Regulation 
https://ec.europa.eu/docsroom/documents/43848  
159 Staff Working Document on the evaluation of the EU legislation on designs protection 
 https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/1846-Evaluation-of-EU-
legislation-on-design-protection_en  
160 
review-of-EU-rules-on-industrial-design-Design-Directive-/public-consultation_en 
161  For  greater  clarity,  for  the  calculation  of  the  percentages  and  shares  of  stakeholders  only  those 
respondents  are  taken  into  account,  which  expressed  opinion  on  the  given  matter.  The  respondents  that 
chose ‘no opinion’ on the given matter are not taken into account in the calculation.  

https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12609-Intellectual-property-

61 

 
                                                           
abuse of design protection, gives manufacturers of complex products (in particular VMs) 
an undue monopoly, eliminates competition in the spare parts aftermarket and makes it 
difficult for customs to assess the infringing (or non-infringing) character of spare parts 
crossing the border.  

Other arguments raised by stakeholders are that the lack of a repair clause: (i) makes it 
difficult  for  companies  (SMEs  in  particular)  to  operate  across  the  internal  market  and 
protect and enforce their IP rights across the EU; (ii) leads to serious obstacles in the free 
movement of goods and (iii) involves confusion and considerable legal uncertainty both 
for professionals and consumers. The stakeholders believe that the fragmentation of the 
market  results  in:  (i) unequal  chances  for  companies,  notably  SMEs;  (ii)  different 
offerings of products available to consumers across the Member States and (iii) increases 
the prices of ‘must-match’ spare parts for consumers and insurance companies. They also 
point  out  that  opening  the  market  of  ‘must-match’  spare  parts  for  competition  only  for 
future  designs  would  preserve  the  current  market  fragmentation  and  complexity  for 
another 25 years. These stakeholders also underline that under the current rules it is hard 
to  prevent  infringements  of  design  rights  in  Member  States  which  have  a  regime  to 
protect  spare  parts.  They  also  point  out  that  the  spare  parts  clause  would  not  have  any 
negative impact on the safety of spare parts, because spare parts are subject to a number 
of  EU  safety  standards  that  apply  to  all  producers  in  order  to  ensure  identical  safety 
requirements.  

1/5 of the stakeholders (20%), including public authorities, were in favour of opening the 
market  of  ‘must-match’  spare  parts  for  competition,  limited  to  new  designs,  thus  the 
repair  clause  should  have  legal  effect  only  for  the  future  (i.e.  be  applicable  to  designs 
granted  after  its  entry  into  force).  They  suggest  the  opening  of  the  market  with  a 
transitional  period.  They  point  out  that  opening  the  market  for  existing  designs  would 
undermine legal certainty and damage businesses that developed these designs in view of 
future  incomes  expected  through  the  IP  protection  on  these  spare  parts.  Some 
stakeholders point out that opening the market with retroactive effect would be contrary 
to the EU Charter on Fundamental Rights and Protocol 1 of the European Convention on 
Human Rights, because it would be an expropriation of the property right.  

Slightly  less  than  1/5  (18%)  of  the  stakeholders,  mainly  right  holders  from  the 
automobile industry, were against the liberalisation of the market of ‘must-match’ spare 
parts. They argue that the exclusion of repair spare parts from design protection is alien 
to the intellectual property system and not justifiable. They emphasise that it deprives the 
manufacturers of complex products (in particular cars) of a fair return on their investment 
and eliminates the incentive for innovation. They argue that only right holders have the 
necessary  expertise  and  know-how  to  manufacture  high  quality,  safe  and  functionally 
adequate spare parts and that low quality spare parts (many coming from third countries 
without safety standards) would harm also the reputation of the right holder and endanger 
the safety of consumers.  

Some  stakeholders,  mainly  from  the  automobile  industry,  call  for  protection  for  spare 
parts both  at  EU and  at  national  level,  arguing that  this would help  to  fight  against the 
inflow of low quality spare parts from third countries.  

As  regards  the  scope  of  design  protection,  the  results  of  the  Public  Consultation 
confirms the need for clarifying that the eligible subject matter of design protection also 
covers  new  type  of  (graphic)  designs  (notwithstanding  the  absence  of  physical 
embodiment).  The  results  show  that  the  large  majority  of  the  stakeholders  would 
welcome  clarifying  the  eligible  subject  matter  of  design  protection  and  cover  also 

62 

 
graphical user interfaces and icons. However, 2/3 of the stakeholders is not in favour of 
extending the subject of design protection beyond visually perceptible matter to include, 
for example, also sound designs (jingles or voices). Most of those opposing the extension 
beyond visually perceptible matter, argue that this would go against the basic concept of 
design protection and would constitute a meaningful difference between the EU’s and the 
International  Classification  for  Industrial  Designs  under  the  Locarno  Agreement,  since 
the latter does not  cover these types  of designs.  Some stakeholders point out  that these 
types  of  designs  may  be  protected  under  copyright  or  trade  mark  law  and  the  overlap 
would create legal uncertainty. A number of stakeholders consider that it is not possible 
to  represent  the  visually  non-perceptible  aspects  of  a  design  in  the  design  register  in  a 
manner  that  allows  third  parties  to  clearly  understand  the  subject  matter  of  protection. 
17% of the stakeholders is in favour of extending the subject of design protection beyond 
visually  perceptible  matter,  as  long  as  this  aspect  is  linked  to  an  external  visual 
component  of  the  design,  arguing  that  this  extension  would  stimulate  innovation  in 
certain product categories (e.g. furniture, automobile, bicycle and videogames).  

The  stakeholders  are  divided  as  regards  the  introduction  of  a  more  systematic  (non-
exhaustive)  categorisation  of  design  types  in  the  EU  law  (30%  is  in  favour,  32%  is 
against such categorisation). The categorisation could be achieved by drawing a clearer 
distinction between the three principle design categories, that is graphical design (which 
may include inter alia logos, graphical user interfaces, surface patterns and typographical 
typefaces), design related to physical objects (which may include inter alia packaging and 
sets of articles), and get-up (which may include inter alia interior design).  

The  respondents,  which  are  in  favour  of  introducing  a  more  systemic  (non-exhaustive) 
categorisation stress that his would create greater transparency, clarity and accessibility 
of  the  EU  legislation  on  designs  and  provide  guidance  to  economic  operators  in 
evaluating their chances in protecting a product with a design (e.g. optimise searches for 
prior  art).  These  stakeholders  point  out  however  that  the  categorisation  should  by  no 
means limit the subject matter of design protection.  

The  respondents,  which  are  against  introducing  a  more  systemic  (non-exhaustive) 
categorisation, question the necessity of such categorisation, arguing that the users of the 
EU’s  design  system  are  already  familiar  with  these  categories  and  it  would  just  create 
uncertainty  concerning  the  subject  matter  of  design  protection.  Some  stakeholders 
indicate  that  the  International  Classification  for  Industrial  Designs  under  the  Locarno 
Agreement  and  the  European  Union  Intellectual  Property  Office’s  guidelines  are 
sufficiently  clear  for 
the  categorisation 
unnecessary.  

the  administration  of  designs,  making 

As  regards  the  definition/scope  of  a  ‘set  of  articles’,  the  large  majority  of  the 
stakeholders  agrees  that  these  designs  need  to  be  eligible  for  design  protection  at  EU 
level. However, the stakeholders have diverging views concerning the definition/scope of 
a  ‘set  of  articles’.  (“a  ‘set  of  articles’  is  a  set  of  physical  objects,  ordinarily  sold  and 
intended to be used together, coordinated in their overall appearance”). 52% of them do 
not  find  the  proposed  definition/scope  appropriate.  Some  stakeholders  suggest  that  the 
definition/scope  should  not  only  include  physical  objects  but  also  graphical  user 
interfaces,  icons  and  virtual  objects  (e.g.  virtual  chess  set,  emojis  or  symbols).  Others 
propose replacing the term ‘object’ with the term ‘product’, arguing that the latter has a 
well-defined meaning in the EU law, covering industrial or handicraft items, whereas the 
former  would  be  new  and  undefined.  Some  stakeholders  find  the  criteria  ‘coordinated 
the 
overall  appearance’  ambiguous  or  unnecessary.  Some  stakeholders 

find 

63 

 
definition/scope too narrow, because it requires the two criteria ‘ordinarily sold together’ 
and ‘intended to be used together’ to be fulfilled cumulatively. Some stakeholders from 
the  fashion  industry  suggest  that  the  definition  should  include  also  ‘series  of  articles’, 
which  are  articles  having  the  same  design  and  sold  in  different  sizes,  colours,  but 
associated with the same requirements and general characteristics (e.g. variations of the 
same product).  

As  regards  the  definition/scope  of  ‘get-up’,  the  stakeholders  have  diverging  views,  but 
the  large  majority  of  them  agrees  that  these  designs,  including  also  the  arrangement  of 
the  interior  of  a  room,  shop  or  restaurant  in  accordance  with  the  International 
Classification  for  Industrial  Designs  under  the  Locarno  Agreement,  need  to  be  eligible 
for  design  protection.  The  views  are  diverging  concerning  the  way  ‘get-up’  should  be 
formulated  or  referred  to  in  the  EU  law.  63%  of  the  stakeholders  do  not  find  the 
definition/scope proposed in the questionnaire (“a ‘get-up’ consists of the arrangement of 
separate  items  to  form  a  coordinated  overall  appearance”)  appropriate.  Some 
stakeholders  expressed  doubts  about  the  necessity  to  define  this  concept  at  EU  level, 
indicating that this concept could be covered even without a definition (e.g. recognised in 
the  recital  or  listed  among  the  products).  Most  stakeholders  consider  the  term 
‘coordinated  overall  appearance’  too  vague  and  subjective  that  would  cause  legal 
uncertainty.  Some  stakeholders  point  out  that  the  term  ‘get-up’  is  not  used  in  other 
language versions  of the Regulation  and Directive (e.g. Dutch,  French, German,  Italian 
and Spanish), therefore, for greater clarity it would be useful to add another term to it.  

As  regards  the  acts  done  privately  for  non-commercial  purposes  (Article  20(1)(a) 
CDR and Article 13(1)(a) DDir)), the large majority of stakeholders (81%) considers that 
it  is  easy  to  use  this  limitation  and  the  wording  is  considered  suitable  also  to  enable 
future  technological  developments.  A  few  stakeholders  indicate  that  technological 
development (e.g. 3D printing) and new social trends (e.g. influencers on social media) 
make the use of this limitation difficult.  

The  large  majority  of  stakeholders  (79%)  considers  the  scope  of  this  limitation  in  the 
current law appropriate. Some stakeholders are concerned about the consequences of the 
potential  expansion  of  the  scope  of  this  limitation,  in  particular  when  considering 
technological developments, such as 3D printing, emphasising that it would endanger the 
balance between right holders and users and lead to the increase of infringing activities. 
If 3D printing becomes more common in the future, they fear that this limitation would 
lead to an immunity for 3D printing activities.  

As regards acts done for experimental purposes (Article 20(1)(b) and Article 13(1)(b)), 
the large majority (79%) of the stakeholders considers that it is easy to use this limitation, 
emphasising  that  the  current  wording  enables  innovation  and  the  lack  of  case  law 
indicates that the use of this limitation is not controversial in practice. The majority of the 
stakeholders (71%) considers the scope of this limitation in the current law appropriate.  

As  regards  the  acts  of  reproduction  for  the  purpose  of  making  citations  (Article 
20(1)(c) and Article 13(1)(c)), the majority of the stakeholders (60%) consider that it is 
easy to use this limitation and stresses that the low number of court cases shows that the 
scope  of  this  limitation  is  clear  for  the  users.  The  majority  of  the  stakeholders  (73%) 
considers the scope of this limitation in the current law appropriate. They consider that 
the  Court  of  Justice  of  the  European  Union  in  the  Nintendo  Case  (C-24/16,  C-25/16) 
found  the  right  scope  for  this  limitation  to  counterbalance  the  far-reaching  scope  of 
design protection. (i.e. the act of reproduction for the purpose of making citations has to 

64 

 
be  compatible  with  fair  commercial  practices,  and  should  not  give  the  impression  of  a 
commercial  connection  between  the  third  party  and  the  design  holder,  should  not  take 
unfair advantage of the holder’s commercial repute and should not negatively affect the 
economic  interests  that  the  design  holder  could  derive  from  the  exploitation  of  its 
design). Some stakeholders underline that the use of a design merely for the purpose of 
decoration  or  ornamentation  should  not  be  covered  by  this  limitation,  but  acts  that  fall 
under  a  copyright  exception  (e.g.  quotation),  should  not  be  considered  an  infringement 
under  design  law  either.  Other  stakeholders  (40%),  however,  do  not  agree  with  the 
judgement  of  the  CJEU  in  the  Nintendo  Case  and  stress  that  it  is  not  easy  to  use  this 
exception because the limitation has become too broad.  

As regards the  act of reproduction for the purpose of teaching  (Article 20(1)(c) and 
Article 13(1)(c), the large majority of the stakeholders (93%) consider that it is easy to 
use this limitation. The large majority of the stakeholders (90%) considers the scope of 
this limitation in the current law appropriate.  

As regards complementing the catalogue of limitations by declaring the presentation of 
one’s own product as an alternative or as accessory or spare part to the product of 
the  competitor  as  permissible,  stakeholders  have  diverging  views.  43%  of  the 
stakeholders consider that the presentation of one’s own product as an alternative or as 
accessory  or  spare  part  to  the  product  of  the  competitor  would  be  beneficial  for  the 
consumers  to  find  alternative  products,  accessories  or  spare  parts  for  more  affordable 
prices.  These  stakeholders  stress  that  the  honest  commercial  practices  criterion  would 
guarantee  that  the  use  remains  within  the  boundaries  of  fair  competition.  57%  of  the 
stakeholders  consider  that  this  use  should  not  be  permissible,  because  it  would  not 
comply  with  the  honest  commercial  practices  criterion  and  would  lead  to  unfair 
competition  and  misleading  advertising  or  ride  on  the  coattails  of  the  reputation  of  the 
design  holder  by  suggesting  a  commercial  connection  between  the  two  owners  of  the 
products.  These  stakeholders  underline  that  the  current  law  allows  referring  to  the 
product of the competitor by its name or its trade mark. 

As  regards  complementing  the  catalogue  of  limitations  by  declaring  illustrations  for 
comparative advertising as permissible, stakeholders have diverging views. 56% of the 
stakeholders  are  against  declaring 
illustrations  for  comparative  advertising  as 
permissible, claiming that it would lead to unfair competition or misleading advertising 
or would allow riding on the coattails of the reputation of the design holder. 44% of the 
stakeholders  support  declaring  illustrations  for  comparative  advertising  as  permissible, 
underlining  that  it  is  beneficial  for  consumers  to  be  able  to  make  informed  decisions 
based on comparisons between equivalent products. These stakeholders also indicate that 
Directive  2016/114/EC  on  misleading  and  comparative  advertising  allows  making  a 
reference to the trade mark of the competitor where it complies with the conditions laid 
down by this  Directive,  the intended aim being solely to  distinguish  between them and 
thus to highlight differences objectively. According to these stakeholders, referring to the 
design of the competitor needs to be also permissible, but the limitation is to be applied 
narrowly  in  order  to  safeguard  the  legitimate  interests  of  the  design  holder.  Some 
stakeholders  underline  that  uses,  which  are  permissible  under  trade  mark  or  copyright 
law, are to be permissible also under design law.  

As regards complementing the catalogue of limitations by declaring comment, critique 
or  parody  as  permissible,  stakeholder  have  diverging  views.  54%  of  the  stakeholders 
consider that uses, which are permissible under copyright law, are to be permissible also 
under  design  law,  in  particular  because  of  the  possibility  to  cumulate  design  and 

65 

 
copyright  protection  on  the  same  product.  These  stakeholders  emphasise  that  this 
limitation  is  to  be applied narrowly in  order to  safeguard the legitimate interests of the 
design holder. 46% of the stakeholders are against declaring comment, critique or parody 
as permissible, arguing that this would lead to that third parties unfairly disparage others’ 
designs by taking advantage of this limitation.  

As regards complementing the catalogue of limitations by declaring using the design to 
foster innovation (e.g. creation of new designs) with help of new technologies such as 
artificial intelligence (along the line of the text  and data mining  exception in  copyright 
law)  as  permissible,  the  stakeholders  have  diverging  views.  34%  of  the  stakeholders 
support  declaring  the  use  of  the  design  to  foster  innovation  as  permissible.  Some 
stakeholders underline that this limitation is not clear, would lead to legal uncertainty and 
endanger  the  balance  between  design  holders  and  users.  These  stakeholders  emphasise 
that  this  limitation  needs  to  embrace  new  technological  developments,  but  interpreted 
narrowly,  in  order  to  ensure  legal  certainty  for  design  holders  and  that  the  limitation 
applies only in situations where there is a clear rationale for its use. These stakeholders 
point out that before introducing this new limitation for designs developed with help of 
new  technologies  such  as  artificial  intelligence,  there  are  some  matters  to  be  clarified 
(e.g.  who  would  be  considered  the  design  holder  and  how  much  human  intervention  is 
needed in  the design process  to  qualify for design protection). 66% of the stakeholders 
are  against  declaring  this  use  permissible,  claiming  that  it  would  lead  to  unfair 
competition.  

As  regards  the  question  whether  or  not  there  is  an  overlap  between  copyright  and 
design  protection,  which  make  the  choice  difficult,  the  stakeholders’  views  are 
diverging,  slightly  more  stakeholders  considering  that  the  overlap  does  not  make  the 
choice  difficult.  The  large  majority  of  stakeholders  agree  that  the  ‘principle  of 
cumulation’ laid down in the DDir (Article 17) and in the CDR (Article 96(2)) is key for 
most  design-intensive  sectors.  Based  on  this  rule  a  design  can  be  protected  by  both 
design and copyright law, provided that protection requirements are fulfilled for both of 
these rights.  

Almost  1/2  of  the  stakeholders  consider  that  the  relationship  between  copyright  and 
design law is unclear and this could potentially lead to less reliance on design protection 
or to the circumvention of one IP right by the other. They argue that copyright is more 
advantageous, because it is cheaper and provides a longer protection. Some stakeholders 
express  concerns  that  a  possible  liberalisation  of  the  spare  parts  market  could  be 
undermined  by  copyright  in  situations  when  the  spare  part  is  eligible  for  copyright 
protection.  

Slightly  more  than  1/2  of  the  stakeholders  do  not  find  the  choice  between  the  two 
regimes  difficult,  emphasising  that  the  recent  case  law  of  the  CJEU  (see  in  particular 
Flos162,  Cofemel163,  and  Brompton164)  has  harmonised  the  notion  of  ‘work’  and  thus 

162  Judgment  of  the  Court,  27.1.2011,  Flos,  C-168/09,  ECLI:EU:C:2011:29.  The  CJEU  clarified  that 
Member States cannot exclude copyright protection for designs, triggering changes in some national law, 
widening the copyright protection for works of applied art, and the possible overlap with design law. 
163  Judgment  of  the  Court,  12.9.2019,  Cofemel,  C-683/17,  ECLI:EU:C:2019:721,  concerning  copyright 
protection of applied arts (interior design),  which appears to be an important area of interaction between 
copyright and design law. Building on the respective objectives and rules of design and copyright law, the 
CJEU concluded that cumulation of protection may only  “be envisaged in certain situations”  (point 52), 
i.e.  when  a  design  meets  the  copyright  protection  requirements,  taking  into  account  that  aesthetic  effect 

66 

 
                                                           
 
helped  clarify  the  relationship  between  copyright  and  design  law.  These  stakeholders 
stress  that  the  ‘notion  of  work’  is  an  autonomous  concept  of  EU  law  that  needs  to  be 
interpreted and applied uniformly.  

Almost 2/3 of the stakeholders (63%) do not consider the concern serious that in view of 
the conditions for granting copyright protection, potential right holders opt for copyright 
protection  instead  of  design  protection,  to  such  a  degree  that  the  special  design  regime 
created  for  designers  and  design-oriented  industries  runs  void.  These  stakeholders 
underline  that  the  two  regimes  pursue  different  objectives  and  have  different  eligibility 
criteria  and  stress  that  the  design  protection  has  certain  advantages,  in  particular,  the 
benefits of registered protection (e.g. absolute protection, clarity regarding priority date 
and ownership, burden of proof, public notice of rights, searchability, potential to assert 
rights  through  registration  and  enforceability)  that  outweighs  copyright  protection, 
therefore, many industries rely on design protection even when their products are eligible 
for copyright protection. 

Around 2/3 of the stakeholders do not consider the concern serious that the conditions for 
granting  copyright  protection  in  addition  to  design  protection  lead  to  overreach  of 
protection and distortion of competition (in particular by allowing overlap of protection 
beyond the 25 years’ maximum term of design protection).  

Almost  2/3  of  the  stakeholders  consider  that  there  should  be  changes  to  the  current 
rules  in  the  EU  on  the  relationship  between  design  and  copyright  protection.  The 
views  of  the  stakeholders  are  diverging  concerning  the  necessary  change.  Most 
stakeholders that support to change the current rules (26%) consider that it is necessary to 
remove  the  margin  of  discretion  for  Member  States  to  determine  the  conditions  for 
copyright protection, because the notion of ‘work’ has recently been harmonised by the 
case law of the CJEU. The Court of Justice of the European Union (CJEU) found that the 
‘notion of work’ is  an autonomous concept  of EU law that  needs to  be interpreted and 
applied uniformly and this puts into question whether the margin of manoeuvre currently 
left to the Member States remains justified. Consequently, many stakeholders raise that 
the  provision  in  the  Directive  (second  sentence  in  Article  17)  which  lays  down  that 
Member States set the conditions under which such protection is granted, including the 
level of originality required, no longer appears justified.  

Some  stakeholders  (13%)  consider  that  it  would  be  necessary  to  adopt  guidelines 
clarifying relevant  case law of the CJEU, emphasising that the  guidelines would create 
clarity  about  the  EU  legal  framework,  reduce  divergences  between  the  national  case 
laws, thus increasing the predictability of court decisions.  

Almost 1/4 of the stakeholders (24%) consider that it would be necessary to set in the EU 
law  the  specific  standards  under  which  designs  can  be  protected  by  copyright  law  to 
create  absolute  certainty,  whereas  others  are  against  amending  copyright  concepts 
through design law. 

does not equal originality. The criterion of the author’s own intellectual creation remains the criterion to be 
taken into account. 
164 Judgment of the Court, 11.6.2020, Brompton Bicycle, C-833/18, ECLI:EU:C:2020:461. In this case, the 
Court concluded that a product whose shape is, at least in part, necessary to obtain a technical result, can 
receive  copyright  protection  where  that  product  is  an  original  work  resulting  from  intellectual  creation, 
meaning that through that shape, its author expresses his creative ability in an original manner by making 
free and creative choices in such a way that that shape reflects his personality. 

67 

 
                                                                                                                                                                            
The majority of stakeholders (71%) never or rarely register the same design as national 
design  in  various  Member  States.  The  main  reason  for  this  mentioned  by  many 
stakeholders  is  that  it  increases  costs  while  offering  more  limited  protection  than  a 
Community design, which offers EU-wide protection at a relatively low cost.  

is 
However,  some  stakeholders  mention  certain  circumstances  under  which 
advantageous to register the same design as national design in various Member States. In 
certain  situations,  it  is  cheaper  and  more  practical  to  register  the  design  as  national 
designs  instead  of  a  Community  design.  Where,  for  multiple-design  applications,  the 
designs are not in the same Locarno class, some national design registries allow (unlike 
the  EUIPO)  such  designs  to  be  combined  into  a  single  application,  thus  making  the 
application  process  cheaper.  In  certain  situations,  where  the  protection  through  a 
Community design is not possible due to national obstacles in certain Member States, the 
option is used to register the same design in various Member States.  

it 

Another reason to opt for national design protection is, for instance, to make the design 
harder  to  invalidate  in  strategic  markets  (since  it  is  easier  to  pursue  an  application  for 
invalidity before the EUIPO than it is before certain national IP offices or courts in the 
case of a national design application).  

Some  stakeholders  stress  that  since  it  is  not  possible  to  protect  spare  parts  at  EU  level 
with a Community design, registering the relevant designs in various Member States may 
be a reasonable business decision.  

The majority of stakeholders (73%) never or rarely register the same design as national 
design  first  and  subsequently  also  as  registered  Community  design  based  on 
convention  priority.  Some  stakeholders  indicate  that  in  some  situations  it  is  useful  to 
register a design first at national level. When the applicant does not know with certainty 
the market potential of its product, it may be reasonable to register the design as national 
design first  and subsequently, within the priority or grace period, if the product  proved 
successful and the design holder wants to expand the business to other markets, also as 
registered Community design.  

Some  stakeholders  indicate  that  in  order  to  ensure  a  priority  right  for  a  multiple 
application, it is practical to file a national  application first and then register a multiple 
application for Community design for only a selection of the designs. 

Stakeholders  are  divided  concerning  the  need  for  changing  the  current  rules  on 
exhibition  priority,  with  slightly  more  (49%)  being  in  favour  of  a  legislative  change. 
This right has the effect that the date on which the design was displayed at an officially 
recognised  exhibition  will  count  as  the  date  of  filing  of  the  design  application  for  the 
purposes of establishing which rights take precedence. For Community designs this right 
is essentially limited to world exhibitions and does not cover display at other, national or 
international, exhibitions. Given the paucity of world exhibitions, and the fact that such 
exhibitions do not involve business-to-business exchange, this limitation is criticised by 
quite a number of stakeholders representing mainly the exhibition industries, which calls 
for  aligning  the  Community  design  regime  with  broader  national  standards  accepting 
exhibition  certificates  from  other  trade  fairs.  They  suggest  that  a  selected  list  of 
recognised  exhibitions  could  be  established  along  with  strictly  codified  procedures  and 
documents  that  the  exhibition  authorities  should  release  for  the  purpose  of  claiming 
priority.  The  exhibition  industry  suggests  that  the  reference  in  the  Community  Design 
Regulation  to  the  Convention  on  International  Exhibitions  (signed  in  Paris  on  22 

68 

 
November  1928  and  last  revised  on  30  November  1972)  should  be  replaced  by  the 
requirement of international  status  of the trade fairs used by the Union of  International 
Fairs (UFI)165. 

The  stakeholders,  furthermore,  considered  the  lack  of  harmonisation  of  priority 
certificates  issued  by  trade  fair  organisers  as  a  problem  that  negatively  influences  the 
complementarity  and  interoperability  between  the  Community  and  national  design 
systems.  Quite  a  number  of  stakeholders  criticised  also  the  diverging  national  rules 
concerning the list of exhibitions that are accepted to claim exhibition priority and called 
for harmonising the national rules and broadening the list of trade fairs that are accepted.  

Quite  a  number  of  stakeholders  (39%),  however,  are  against  changing  the  rules  on  the 
exhibition priority, emphasising that the requirements set by Convention on International 
Exhibitions guarantee the necessary authenticity and seriousness of the priority claimed. 
These stakeholders stress that considering the low number of  exhibition priority claims 
and that the Design Law Treaty also limits the exhibition priority to official or officially 
recognised international exhibitions, it would not be practical to change the current rules.  

In contrast to the EUIPO and the vast majority of national industrial property offices, the 
industrial property offices of five Member States still carry out ex officio examination of 
prior art for the purposes of establishing novelty of a design applied for registration. The 
stakeholders  express  diverging  views  on  this  matter.  Quite  a  number  of  stakeholders 
(38%) consider that Member States should remain free to examine novelty of a design, 
because the ex officio examination of prior art has a number of benefits. They consider 
that ex officio examination increases the legal certainty over the validity of the design for 
the applicant since it provides a first filter for registering manifestly invalid design rights. 
For these reasons, several stakeholders consider that ex officio examination of prior art 
should be introduced both at EU and national level. 

Quite a number of the stakeholders (28%) however consider that Member States should 
not  be  allowed  to  do  so  any  more  in  alignment  with  the  Community  design  system, 
because  the  different  practices  fragment  the  EU  market,  the  ex  officio  examination 
causes  additional  administrative  burden  and  costs  for  businesses  and  increases  the 
duration of the design registration procedure. Some stakeholders also stress that the lack 
of  ex  officio  examination  does  not  appear  to  lead  to  the  registration  of  more  invalid 
designs. They consider also that the lack of ex office examination for prior art does not 
undermine the legal certainty over the validity of the design for the applicant. 

In some Member States, where it is currently not possible to seek for the invalidation of 
a  registered  design  before  the  industrial  property  office,  only  a  very  few  invalidity 
cases  are  brought  before  the  competent  courts.  2/3  of  the  stakeholders  (66%)  consider 
that  Member  States  should  be  required  to  establish  quick  and  inexpensive  proceedings 
before their industrial property  offices to  get  registered designs invalidated. They  point 
out that the non-availability of office-based proceedings for the invalidation of registered 
designs  in  some  Member  States  makes  the  design  system  in  these  Member  States 
inefficient,  and  thus  burdensome  for  businesses,  in  particular  SMEs  and  individual 
designers.  They  also  emphasise  that  in  order  to  assist  in  capacity  building  and  cushion 
potential  negative  impacts  on  the  part  of  smaller  IP  offices,  cooperation  between  the 
EUIPO and national IP Offices should be extended appropriately. They stress that under 

165  
Based  on  the  following  criteria:  a)  the  number  of  direct  foreign  exhibitors  and  multinational 
exhibitors represents at least 10% of the total number of exhibitors at the fair; or b) the number of foreign 
visits or visitors represents at least 5% of the total number of visits or visitors at the exhibition. 

69 

 
                                                           
the current rules the only way for competitors to invalidate a design right is to go through 
complex and costly invalidity proceedings before national courts, which is a deterrent. In 
addition,  many  public  authorities  are  in  favour  of  introducing  mandatory  invalidity 
proceedings at national level.  

Those  stakeholders  (18%)  that  are  against  introducing  mandatory  administrative 
invalidity  proceedings  point  out  that  in  some  Member  States  so  few  designs  are 
invalidated  that  there  is  not  enough  experience  nor  demand  to  run  such  proceedings 
efficiently. 

As  regards  the  fee  levels,  41%  of  the  stakeholders  consider  that  the  basic  fee  for  the 
initial  five  years’  registration  of  a  Community  design  (EUR  350)  should  be  lowered. 
They point out that lowering the registration fee level would make the design protection 
more accessible to SMEs and individual designers without affecting the delicate balance 
between the national and EU level protection. 24% of the stakeholders consider that the 
fee(s) for renewing the registration of a Community design should be lowered.  

Some stakeholders call for the introduction of a genuine use requirement for designs, but 
many stakeholders are expressly against this. One of the problems mentioned by several 
stakeholders  is  that  the  renewal  fee  of  the  registered  designs  increases  each  time.  A 
number  of  stakeholders  call  for  aligning  the  EU  and  international  renewal  fee  levels. 
Some stakeholders express concerns about the requirement that designs combined under 
a  single  application  have  to  fall  under  the  same  Locarno  class.  They  also  criticise  that 
multiple  designs  in  the  same  Locarno  class  can  benefit  from  a  bulk  discount  at  the 
application phase, whereas this is not available at the point of renewal.  

As regards the introduction of a commonly recognised symbol, pointing to the fact that 
the design incorporated in a product is registered (design notice), the large majority of the 
stakeholders (72%) consider this being a suitable means to raise awareness about the EU 
design system. These stakeholders point out that the commonly recognised symbol would 
make the public aware of the fact that a certain right is protected and indicate ownership 
on  it  that  can  be  enforced  against  third  parties.  They  emphasise  that  the  symbol  could 
inform  third  parties  about  the  fact  that  the  design  is  registered,  deterring  them  from 
copying it and serving as proof of knowledge of registration in infringement cases. Some 
stakeholders suggest introducing the possibility to use the commonly recognised symbol 
also for unregistered designs. Some stakeholders stress that the symbol would also serve 
as a useful tool to enhance the value of the protected right  for its design holder from a 
valuation  and  marketing  perspective.  They  consider  however  that  the  symbol  should 
remain  optional,  because  it  may  be  an  additional  cost  for  the  design  holders  and 
impractical for certain product categories.  

Some  stakeholders  (27%)  do  not  support  the  introduction  of  a  commonly  recognised 
symbol,  emphasising  that  its  use  would  not  be  practical  in  certain  sectors  (e.g.  those 
sectors, which offer small products or sectors with strong considerations of aesthetics).  

The stakeholders raised a number of additional issues in relation to the design reform, 
which were not subject to the questionnaire (but already covered by the previous, broader 
public consultation in the context of the evaluation).  

Many stakeholders suggest that the design holder should be entitled to take action against 
counterfeit goods in transit, similarly to the provisions on goods in transit in the EUTMR 
and TMD.  

Many  stakeholders,  mainly  right  holders,  suggest  abolishing  the  condition  for  multiple 
applications in Article 37(1) CDR that the products in which the designs are intended to 

70 

 
be incorporated or to which they are intended to be applied all belong to the same class of 
the International Classification for Industrial Designs (‘unity of class’ requirement). 

A  number  of  stakeholders  call  for  a  more  user-friendly  registration  procedure  and 
electronic  search  tools,  which  is  fit  for  the  digital  age  (e.g.  electronic  filing).  They 
propose that the EUIPO and the national IP offices accept the possibility to deposit more 
than  seven  views/representations  per  design  or  to  modify  the  views/representations 
following  an  objection  by  the  EUIPO  or  a  national  IP  office  on  their  mode  of 
representation, without expanding the scope of protection, as well as the ability to file 3D 
formats, video files and animations for the representation of the design.  

Some stakeholders suggest  introducing a simple opposition procedure that  would allow 
third parties to prevent the registration of an allegedly infringing design.  

Some stakeholders consider that the provisions on deferment of publication needs to be 
harmonised  between  Member  States,  by  requiring  Member  States  to  provide  for  this 
possibility with the same maximum duration and with the possibility for the applicant to 
have  its  design  published  before  the  expiration  of  the  maximum  duration  of  the 
deferment period and to make minor changes to the design during the deferment period 
without invalidating the deposited design.  

71 

 
 
 
ANNEX 2A: STAKEHOLDERS VIEWS ON SPARE PARTS LIBERALISATION 

Design  protection  for  visible  spare  parts  was  the  most  controversial  topic  of  the 
stakeholder  consultations.  While  car  manufacturers,  their  specific  interest  groups  and 
brands  associations,  where  they  are  prominent  members,  are  not  supportive  of  the 
introduction  of  an  EU-wide  repair  clause  into  the  DDir,  the  independent  repair  sector, 
including lobby associations, consumer organisations and academia strongly advocate the 
full liberalisation of the spare parts aftermarket. 

Main arguments put forward in favour of design protection are: 

  Exemption for spare parts in design law is alien to IP system and not justifiable. 
  Removal of protection deprives car manufacturers of the right to a fair return on 
their  investment  and  eliminates  the  incentive  for  innovation,  leading  to  reduced 
design diversity and correspondingly negative effects on innovative markets.  
  Alleged economic advantages of the repair clause (lower prices) are unproven. 
  Design protection is needed to protect public against unsafe and inferior parts. 

Main arguments put forward against design protection for spare parts (and in favour of 
liberalisation) and followed in this impact assessment:  

  Spare  parts  protection  is  abusive  as  contradicting  the  actual  purpose  of  design 

protection which is to foster creativity through design innovation.  

  Extension  of  protection  to  must-match  spare  parts  implies  the  complete 
elimination  of  competition  in  the  aftermarket.  Unlike  its  effects  on  the  primary 
market, applying design protection to must-match parts in respect of which there 
is no design alternative gives vehicle manufacturers a product monopoly. 

  Lack of fair competition deprives vehicle owners from any choice (making them 

captive consumers) and is cause for verifiably higher prices. 

  Design protection is not the right instrument to generate and safeguard safety and 
quality of spare parts. Safety is a matter of specific legislation (type-approval and 
authorisation) and quality is a matter of market forces and consumer choice (for 
decades spare parts from a variety of sources have been offered in Europe). 

Table. 2a.1. Answers to question 3. Should there be changes to design protection for repair spare parts? 

Yes, limited to new designs 
Yes, to both existing and 
new designs 
No changes 

Other 
Answers 

All 

20% 

27% 

18% 

35% 

83 

Manufacture of 
motor vehicles 

Manufacture of 
parts and 
accessories for 
motor vehicles 

Consumer 
organisation 

Public authority 
(national) 

0% 

0% 

20% 

80%* 

5 

0% 

89% 

0% 

11% 

9 

0% 

100% 

0% 

0% 

2 

43%  
(HR, LT, IT) 

0% 

14% (SE) 
43%  
(ES, HU, EE) 
7 

* Manufacturers asked for full protection of spare parts in all MS (no liberalisation at all even in 12 MS 
who already have liberalised)  
Source: OPC analysis 

72 

 
 
 
 
 
ANNEX 3: WHO IS AFFECTED AND HOW? 

1.  Practical implications of the initiative 

The most significant benefits of the initiative relate to the liberalisation of the spare parts 
aftermarket. This will especially concern the vehicles market and should reach between 
EUR 340 and 544 million after the ten-year transition period. 

Other  changes  relate  to  the  adjustment  of  fees  for  registered  Community  design 
protection and simplifications for users to apply and manage their rights. The adjustment 
of  fees  aims  at  making  protection  more  attractive  to  those  seeking  protection  up  to  ten 
years, while charging significantly more for longer term protection. The new regime also 
strives  to  keep  national  design  protection  attractive  for  local  users,  and  seeks  to  limit 
negative impacts on the EUIPO budget. 

The final set of changes regards the approximation of national rules and alignment to the 
CDR  to  facilitate  cross-border  filing  and  design  portfolio  management.  These  changes 
are most difficult to quantify, thus just a couple of examples are mentioned below. 

2.  Summary of costs and benefits 

I. Overview of Benefits (total for all provisions) – Preferred Option 

Description 

Amount 

Direct benefits 

Comments 

Liberalisation of the 
aftermarket for spare parts. 
Limited to new designs for 
the first 10 years (Opt. 1.2) 

In the car market for visible spare parts: 
EUR 340-544m per year from year 11. During 
the 10-year transition each year benefits will 
increase by EUR 4 to 13m per year to reach up to 
EUR 40-130m in year 10. 

Benefits to customers. As regards car market 
to those from AT, BG, CY, CZ, DE, DK, 
EE, FI, FR, HR, MT, PT, RO, SE, SI, SK 

Reduction of RCD fees for 
basic protection and 1st 
renewal (Opt. 3.1) 

EUR  6 million* 

Other simplifications (e.g. 
means and requirements of 
design representation) (Opt. 
2.) 

Facilitation of multiple 
applications (Opt 2) 

EUR 1 million* 

EUR 0.64 million* 

No transfer fee (Opt 3) 

EUR 0.63 million* 

EUR 4,000 – 7,000 per case 

Office-based invalidity 
procedure in national IP 
offices 

No ex-officio examination 
of prior art in national IP 
offices 

N/A 

Basic protection reduction concerns all 
applicants, renewal only those who decide to 
renew – around 49% of owners renew after 
5 years. 

Concerns around 14% of RCD applicants. 
Realised at initial application. 

Concerns around 20% of RCD applicants. 
Realised at initial application. 

Simplification for around 3000 designs that 
annually are transferred to different owners. 

Concerns those seeking to cancel invalid 
design  

Registration time cut in half 

Concerns around 1000 applications a year 

Indirect benefits 

73 

 
 
 
 
* Estimate for 2024. Benefits will increase with raise of number of applications/protected designs. In the optimistic scenario 
number of applications may raise by 15% in 2030 in comparison to the baseline growth. 

II. Overview of costs – Preferred option 

Citizens/Consumers  

Businesses 

Administrations 

One-off 

Recurrent 

One-off* 

Recurrent 

One-off 

Recurrent 

n/a 

n/a 

n/a 

n/a 

n/a 

n/a 

n/a 

n/a 

n/a 

n/a 

n/a 

n/a 

n/a 

n/a 

n/a 

n/a 

n/a 

2nd 
renewal 
(15 years 
protection
) 

3rd 
renewal 
(20 years 
protection
) 

4th 
renewal  
(25 years 
protection
) 

Cap of 50 
designs 
per 
applicatio
n 

Direct costs 

Indirect costs 

Direct costs 

Indirect costs 

Direct costs 

Indirect costs 

Direct costs 

EUR 175.33 
per owner 

Total 
annually*: 
EUR0.6m 

n/a 

EUR 1,139.66 
per owner 

Total 
annually*: 
EUR1.5m 

n/a 

EUR 3,345.93 
per owner 

Total 
annually*: 
EUR2.3m  

n/a 

n/a 

n/a 

n/a 

n/a 

EUR 2,539.88 
per owner 

n/a 

n/a 

Total 
annually*: 
EUR0.18m  

n/a 

n/a 

n/a 

n/a 

n/a 

n/a 

n/a 

n/a 

n/a 

n/a 

n/a 

n/a 

Indirect costs 

n/a 

n/a 

n/a 

n/a 

n/a 

n/a 

* Each of the cost below are paid only once per each design or application.  

74 

 
 
 
 
 
 
 
 
 
 
 
 
ANNEX 4: ANALYTICAL METHODS 

The analytical methods used in the various studies mentioned in Annex 1 are explained 
in the text of the respective studies. 

Measuring the impact of introducing EU-wide repair clause 

Using data on prices of 12 types of spare parts for 60 car models from 2001 to 2016 in 16 
EU  member  states  plus  Norway  and  Switzerland,  Herz  &  Mejer  (2020)  difference-in-
differences estimates imply that design protection extended to the use of spare parts for 
the purpose of repair increases prices of these parts in Europe by about 5–8%. 

Herz & Mejer (2020) use these estimates to  calculate potential savings to the European 
Union  customers.  “Savings”  refer  to  the  counterfactual  decrease  in  spending  of  EU 
consumers for a given quantity of spare parts. The quantity is proxy using the spare parts 
market  data  coming from  GlobalData Report166  that documents that in  2017 the annual 
value of the market for visible spare parts (i.e. lighting, body parts and glazing segments) 
in  the  EU  in  2016  amounted  to  EUR  20  billion  with  45%  of  sales  occurring  in  the 
countries without repair clause exemption. The market size includes the UK who was at 
that time member of the European Union and who has a repair clause exemption. Herz & 
Mejer (2020) conclude that the EU28 consumers would save between EUR 450 and 720 
million annually on the purchase of visible automotive spare parts alone. 

For the purpose of this impact assessment the saving estimates by Herz & Mejer (2020) 
are  updated  with  the  data  on  market  size  reported  in  Wolk  After  Sales  Experts  Study 
(2021). According to this recent study, in 2019 the market size for visible spare parts in 
the  EU27  (i.e.  post-Brexit)  amounted  to  EUR  16.3  billion  with  almost  51%  of  sales 
(EUR  8.3  billion)  occurring  in  countries  without  repair  clause  exemption,  resulting  in 
potential annual savings to the EU customers between EUR 415 and EUR 664 million. 

Assessment of options 

Most  VMs  launch  a  new  generation  of  a  given  model  (‘redesign’)  every  five  to  eight 
years.167 In the meantime, they may add small changes to the skin and/or interior design 
of a  car to  boost consumer  interests in  a model. Those changes tend to  be made to  the 
bumpers,  lights  and  grille  and  are  called  ‘a  facelift’.  For  the  purpose  of  assessment  of 
options  it is  therefore  assumed that ‘redesign’ takes place every six  years and ‘facelift’ 
every three years. 
Data on vehicles in use by age comes from the ACEA Report.168 Out of 16 MS that do 
not have a repair clause in place or liberalised the market only recently (i.e. Germany and 
France), detailed information is available for as much as 12 MS.169 In 2019, there were 
123 million  passenger  cars on the  roads in  those MS and  among them 7.2 million  new 
cars. 

Option 1.1: Full liberalisation for all designs. Under this option a repair clause would 
apply to all cars that are currently on the market, including 123 million cars in markets 

166  GlobalData  (2017).  The  European  Car  Crash  Repair  Parts  Market  2012  –  2022:  Market  size,  market 
forecast and recommendations. Published: February 2017. 
167  See  specialised  press:  https://www.autotrader.com/car-shopping/buying-car-why-you-should-pay-
attention-model-cycles-239246; 
https://www.carwow.co.uk/guides/glossary/car-facelift-explained-
0658#gref  
168 ACEA Report (2021, January) Vehicles in use, Europe. p. 10 - Vehicles in use by Age. 
169 Infomration on Bulgaria, Croatia, Cyprus and Malta is missing. 

or 

75 

 
                                                           
without a repair clause, bringing full potential savings between EUR 415 and EUR 664 
million to consumers. 

Option  1.2:  Instant  full  liberalisation  for  new  designs  followed  by  full  liberalisation 
for old designs after transitional ten-year period. Under this option, during the transition 
period  of  10  years  only  spare  parts  for  ‘redesigned’  or  ‘facelifted’  models  would  be 
covered under a repair clause. To proxy the number of ‘redesigned’ cars,  it is assumed 
that spare parts for one out of six cars would be subject to a repair clause (7.2 million * 
1/6 = 1.2 million), which amounts to 1% of the total passenger car fleet. At the end of the 
10-year transition  period, 10% of the car fleet  would benefit from  a repair clause. This 
share  increases  to  20%  if  ‘facelifted’  cars  are  accounted  for.  Therefore,  during  the 
transition period the benefits to consumers would be very limited. 

Option 1.3: Full liberalisation of new designs. Applying the same assumption as in the 
case  of  Option  1.2,  after  ten  years  between  10  and  20%  would  benefit  from  a  repair 
clause, after 15  years  this share would  go up to  between 15  and 30% respectively, and 
after 20 years between 20 and 40%. 

76 

 
 
 
 
 
ANNEX 5: PROPOSALS TO BE COVERED BY THE REVISION OF THE 

REGULATORY FRAMEWORK 

1. Introduction of a repair clause into the DDir in alignment with Article 110 CDR 
(addressed in the problem definition) 

2. Updating and streamlining provisions and procedures related to the RCD, to the extent 
relevant in alignment with reformed EUTMR (addressed in the problem definition) 

–  Definitions of a design and product (Article 3 CDR, Article 1 DDir). 

–  Filing of RCD applications through national offices (Article 35 CDR): The option 
to apply for a RCD through a national IP office has been foreseen by the CDR as 
temporary measure (see Article 35(4) CDR). The number of applications received 
through national offices have become near extinct. Therefore, in  alignment with 
the reformed EUTMR, the option of filing a RCD through national offices should 
be abolished. 

–  Align  other  procedural  rules  of  the  CDR  with  the  reformed  EUTMR,  such  as 
regards  the  persons  that  can  be  proprietors  of  a  RCD,  the  principles  of 
professional  representation,  the  means  and  rules  of  communicating  with  the 
EUIPO,  the  legal  instruments  available  in  proceedings  (such  as  revocation  of 
decisions as provided for in Article 103 EUTMR, or continuation of proceedings 
as provided for in Article 105 EUTMR) and their requisites. 

3.  Optimization  and  streamlining  of  the  fee  schedule  and  adjustment  of  the  amount  of 
fees to be paid for the RCD (addressed in the problem definition) 

4.  Further  approximation  of  design  laws  and  procedures  (addressed  in  the  problem 
definition)  

4.1 Principal procedural rules to be added to the DDir in alignment with the CDR 

-  Regulate requirements for obtaining a filing date; 

-  Regulate  the  requirements  and  technical  means  for  the  clear  and  precise 

representation of designs;  

-  Regulate  that  it  must  be  possible  to  combine  several  designs  in  a  design 
application (multiple application) and without the need for the relevant products 
to belong to the same class of the International Locarno Classification; 

-  Regulate  that  it  must  be  possible  to  request  that  the  publication  of  a  registered 
design be deferred for a period of 30 months from the date of filing (or the date of 
priority of) the application in alignment with Article 50 CDR;  

-  Regulate that ex-officio substantive examination of a design application does not 

cover prior art in alignment with Article 47 CDR; 

-  Regulate that it must be possible to request the invalidation of a registered design 
in proceedings before the office (mandatory administrative invalidity procedure). 

4.2 Further substantive rules of the CDR to become part of the DDir 

-  Make explicit in the DDir that the scope of protection  conferred by a registered 
design is not limited to any product specification in alignment with Article 36(6) 
CDR; 

-  Provide for rights of prior use in alignment with Article 22 CDR; 

77 

 
-  Mirror the presumptions of ownership and validity of a design registration as laid 

down in Article 17 and Article 85 CDR. 

5. Required other alignment of legislation with the reformed trade mark legislation (not 
addressed in the problem definition) 

-  Complement  the  rights  conferred  by  both  the  RCD  and  registered  national 
designs  to  explicitly  extend  to  counterfeit  design  goods  in  transit  in  line  with 
Article 9(4) EUTMR and Article 10(4) TMD.  

6. Compliance with the Lisbon Treaty (not addressed in the problem definition) 

-  Update  the  terminology  used  in  the  legislation  to  refer  to  the  EU  and  Union 

instead of the Community, etc.; 

-  Align  the  powers  currently  conferred  upon  the  Commission  to  adopt  necessary 
provisions for implementing its provisions (Article 107 CDR) to Articles 290 and 
291 TFEU in alignment with the reformed EUTMR. 

78 

 
ANNEX 6: SPARE PARTS PROTECTION IN MEMBER STATES 

The Table below provides  an overview of the implementation of  a  repair clause across 
Member  States.  Italy  introduced  a  repair  clause  in  2001  and  Poland  in  2007.  Denmark 
and  Sweden  (*)  offer  a  maximum  term  of  design  protection  of  15  years,  being  shorter 
than that of 25 years in all other Member States providing protection. 

In  Germany,  a  repair  clause  was  recently  inserted  into  the  national  Designs  Act  and 
entered  into  force  on  2  December  2020,  affecting  designs  applied  for  registration  after 
that  date.  In  France  (**),  a  partial  repair  clause,  promulgated  on  24  August  2021,  will 
become applicable (only) as from 23 January 2023, extending as well to new designs. 

Table A.5.1. Implementation of repair clause in the EU Member States 

Austria (AT) 
Belgium (BE)  
Bulgaria (BG) 
Croatia (HR) 
Cyprus (CY) 
Czech Republic (CZ) 
Denmark (DK)* 
Estonia (EE) 
Finland (FI) 
France (FR)** 
Germany (DE) 
Greece (EL) 
Hungary (HU) 

Repair 
clause 

no 
yes 
no 
no 
no 
no 
no 
no 
no 
no 
yes (2020)  
yes 
yes 

Ireland (IE) 
Italy (IT) 
Latvia (LV) 
Lithuania (LT) 
Luxembourg (LU) 
Malta (MT) 
Netherlands (NL) 
Poland (PL) 
Portugal (PT) 
Romania (RO) 
Slovakia (SK) 
Slovenia (SI) 
Spain (ES) 
Sweden (SE)* 

Repair 
clause 

yes 
yes (2001) 
yes 
yes 
yes 
no 
yes 
yes (2007) 
no 
no 
no 
no 
yes 
no 

Source: Legal review on industrial design protection in Europe (2016) and Beldiman 
and Blanke-Roeser (2017) 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
ANNEX 7: EVOLUTION OF EUIPO BUDGET  

I. Budgetary calculations applied to sub-options 3.1 and 3.2 for adjusting RCD fees  

The  two  options  for  fee  adjustment  presented  below  foresee  the  reduction  of  the  basic 
RCD registration fee.  

Furthermore,  in  order  to  ensure  equal  treatment  of  applicants  with  smaller  and  larger 
filing  volumes,  both  proposals  also  involve  the  introduction  of  a  flat  fee  per  additional 
design of a multiple application.  This  is complemented by the removal  of the currently 
existing ‘unity of class’ requirement in the CDR applicable to multiple applications.  

As  a  consequence,  the  considered  options  for  adjustment  of  fees  would  allow  easier 
access  to  RCD  protection,  in  particular  for  SMEs  and  individual  designers  (cheaper 
acquisition of the right and first renewal), while safeguarding at the same time that only 
those RCDs utilised in the market place remain on the register by way of the renewal fee 
increments.  

Table A.7.1 - Currently applicable fees and revenues 

Applications 

Renewals 

Other fees 

Existing fees 
Registration170 
€ 350 
2-10 design 
€ 175 
11 to design 
€ 80 
51 to inf. 
€ 80 
IR Individual 
designation 
€ 62 
1st  € 90 
2nd € 120 
3rd € 150 
IR renewal 
€ 31 
Deferment of 
publication 
€ 40 
2 to 10 design 
€ 20 
11 to inf. 
€ 10 
Miscellaneous fees 
RCD invalidity 
€ 350 

2021 

2022 

2023 

2024 

2025 

20 628 
225.38 

21 299 
615.50 

21 953 
222.15 

22 627 
392.56 

23 322 126.71 

9 193 
968.98 

9 716 
893.92 

9 902 
966.11 

11 802 
446.11 

13 921 376.11 

1 221 
060.00 

1 249 
160.00 

1 276 
370.00 

1 293 
880.00 

1 311 730.00 

1. Sub-option 3.1 (Total loss of revenue - € 3 204 671.62) 

170 Includes publication and registration fees. 

80 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
According to sub-option 3.1, the headline fee to obtain a single RCD is reduced from € 
350 to € 250. For each additional design forming part of a multiple application, the fee is 
€ 125, leading to savings of € 125 vis-à-vis a single design application per design.  

The  fees  for  renewals  under  this  option  are  as  follows:  first  renewal  –  €  70;  second 
renewal – € 140; third renewal – € 280; fourth renewal € 560. Thus, the fees for the first 
two renewals are equivalent to those under the current fee level, that is € 210 in total. 

Table A.7.2 – applicable fees and revenues under sub-option 3.1 

Proposed fees 

2021 

2022 

2023 

2024 

2025 

Registration171  
€ 250 
2-infinite design 
€ 125 
IR Individual 
designation   
€ 62   

1st € 70 
2nd € 140 
3rd € 280 
IR renewal  
€ 31 
Deferment of 
publication  
€ 40 
2 to 10 design  
€ 20 
11 to inf.  
€ 10 
Miscellaneous fees 
RCD invalidity 
€ 350 

Applications 

Renewals 

Other fees 

Total loss of 
revenue172  

16 606 150.38 

7 142 791.03 

7 668 841.55 

18 211 440.94 

18 770 589.19 

10 421 628.98 

10 961 863.92 

11 216 226.11 

13 638 926.11 

16 894 136.11 

1 221 060.00 

1 249 160.00 

1 276 370.00 

1 293 880.00 

1 311 730.00 

-3 419 615.00  

-3 537 54.47+ 

-3 596 20.60+ 

- 3 204 671.62 

-2 203 977.52 

2. Sub-option 3.2 (Total loss of revenue - € 3 164 565.16)  

Under the second sub-option, the headline fee is also € 250 but each additional design of 
a  multiple  application  further  discounted  to  €  100  instead  of  the  proposed  €  125  under 
sub-option  3.1.  This  will  further  promote  easy  access  to  RCD  protection.  The  fees  for 
renewals under this option are as follows: first renewal – € 80; second renewal – € 160; 
third renewal – € 320; fourth renewal € 640.  

171 Includes publication and registration fees. 
172  The  loss  of  €  625  200  generated  due  to  the  abolishment  of  transfer  fee  is  added  to  the  total  loss  of 
revenue figures every year. 

81 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
This  option  effectively  allows  applicants  to  register  two  RCDs  for  the  same  fee  as 
currently required for a single RCD (€ 350). At the same time it safeguards by increasing 
subsequent renewals fees that only those RCDs utilised in the market place remain on the 
register.  

Table A.8.3 – applicable fees and revenues under sub-option 3.2 

Proposed fees 

2021 

2022 

2023 

2024 

2025 

Applications  Registration173  

Renewals 

Other fees 

€ 250 
2-infinite design  
€ 100 
IR Individual 
designation   
€ 62   

1st € 80 
2nd € 160 
3rd € 320 
IR renewal  
€ 31 
Deferment of 
publication  
€ 40 
2 to 10 design  
€ 20 
11 to inf.  
€ 10 
Miscellaneous fees 
RCD invalidity 
€ 350 

14 924 125.38 

15 404 414.03 

15 877 120.79 

16 364 697.40 

16 867 143.86 

11 856 618.98 

12 478 003.92 

12 756 976.11 

15 525 776.11 

19 246 016.11 

1 221 060.00 

1 249 160.00 

1 276 370.00 

1 293 880.00 

1 311 730.00 

Total loss of 
revenue174  

-3 666 650.00 

-3 759 291.47 

-3 847 291.36 

- 3 164 565.16 

-1 755 542.86 

3. Calculation assumptions 

The  calculations  of  the  EUIPO  budget  evolution  use  the  following  specific 
assumptions:  

  Calculations are based on: 

o 

the  figures  on  RCD  applications,  renewals  and  other  files  presented  to  the 
EUIPO  Budget  Committee in  November 2020. These figures  are part  of the 
approved Budget 2021 and Financial Outlook 2022 – 2025; 

173 Includes publication and registration fees. 
174  The  loss  of  €  625  200  generated  due  to  the  abolishment  of  transfer  fee  is  added  to  the  total  loss  of 
revenue figures every year. 

82 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
o 

the estimated number of files was performed assuming a growth rate of 3.1% 
per year for the period from 2021 until 2025; 

o  calculations  related  to  multiple  applications  are  based  on  the  historical 
distribution of the number of RCDs filed. The historical distribution is applied 
to  the  total  number  of  files  allowing  to  produce  the  several  different 
simulation scenarios;  
the renewals are calculated using the following logical steps: 

o 

-  number of RCD’s subjected to renewal (RCD’s files N-5) *historical 

renewal rate per wave of renewal; 
the same logic is applied to IRCD’s; 
the percentage of deferment is calculated as follows: 

- 

o 

-  historical rate of deferred publication * RCD’s fillings; 

o  design invalidity is calculated as follows: 

o 

-  historical rate of invalidity * RCD’s fillings. 
the figures presented may not add-up due to a rounding effect during the 
several steps involved in the budget preparation. 

  The fee adjustments are presumed to enter into force on 2024. Thus, the total impact 

and the loss of EUIPO revenue best to be considered is that of the year 2024. 

  The  fee  adjustments  are  expected  not  to  have  a  relevant  impact  on  the  RCD  filing 
volumes in view of the filing figures following the latest fee reductions for EUTMs.  

  Mirroring  the  fee  reform  for  EUTMs,  the  transfer  fee  for  RCDs  is  proposed  to  be 
abolished and therefore the resulting loss of EUIPO revenue of € 625.200 per year is 
included in the calculations.  

  The deferment and miscellaneous fees remain unchanged. 

  The fee structure is simplified by abolishing the separate publication fee and adding 

this fee to the registration fee. 

  The  same  multiple  application  discount  is  granted  for  the  designs  contained  in  a 
multiple application, regardless of the number of such designs applied for (flat fee). 

  The proposed limit of up to 50 designs forming part of a multiple application should 
slightly minimize the loss of EUIPO’s revenue in the future. However, this proposed 
change is not reflected in the calculations, as not impactful.  

  The revenue from a possible 4th renewal period is not considered in the calculations, 

since no reliable figures are yet available. 

  The highest number of RCD filings originated from the People’s Republic of China 
in  2020.  This  country  is  preparing  to  join  the  Hague  Agreement  concerning  the 
international  registration  of  industrial  designs.  Thus,  instead  of  RCD  filings,  the 
proportion  of  international  registrations  designating  the  EU  (IRCDs)  could  rise 
sharply  when  filers  from  China  opt  for  the  international  file  route  instead  of  direct 

83 

 
 
 
 
 
 
 
 
 
 
 
RCD  filings  (following  the  evolution  of  international  filings  with  effect  for  the  EU 
from South Korea after this country joined the Hague Agreement). The EUIPO’s fee 
revenue for IRCDs is well below that for direct filings. This expected future loss of 
revenue is not included in the calculations.  

  Calculations foresee a 1.5% exchange rate for the IRCD individual designations and 

IRCD renewals. 

II. Expected evolution of EUIPO budget according to revenues and expenditures 

1. Current situation 

a)  Use  of  revenues:  Table  A.7.4  shows  how  the  revenues  are  mobilised  in  terms  of 
activities of the Office. The main conclusion is that the revenues are first used to cover 
the  costs  of  EUTMs  and  RCDs  but  also  to  cross-subsidise  all  the  “non-fee  producing” 
activities.  Because  the  balance  is  negative,  the  office  makes  actually  use  of  the  past 
accumulated  budgetary  results.  Indeed,  as  mentioned  in  prior  communications,  the 
Office’s contribution to  EU policies (European school of Alicante, EU Funded projects 
and SME fund), is supported by the Office’s accumulated surplus, in accordance with the 
provisions  of  the  Office’s  Financial  Regulation  and  the  Court  of  Auditor’s  suggestion. 
While the entire contribution to  EU policies comes from  financial reserves, outside the 
operational budget, it is worth highlighting that the surplus amount generated in the year 
is insufficient to compensate it, leading to a net reduction of the accumulated result from 
previous years. 

Table A.7.4 – Mobilisation of revenues in terms of activities of the Office 

b) Cross-subsidising result: In terms of RCDs, the cross-subsidising result is as shown in 
the following table. 

Table A.7.5 – Cross-subsidising result in terms of RCDs 

84 

 
 
 
 
 
2. Situation under sub-option 3.1  

The impact of sub-option 3.1 after 2024 is estimated in the following table. 

Table A.7.6 – Impact of sub-option 3.1 on revenues 

The reduction of revenue will increase usage of past accumulated budgetary results. 

Table A.7.7 – Usage of past accumulated budgetary results 

The contribution of RCDs for the cross-subsidising process is reduced. 

Table A.7.8 – Contribution of RCDs for cross-subsidising process 

85 

 
 
 
 
 
 
 
 
 
 
3. Situation under Option 3.2 

The  conclusions  are  identical  to  sub-option  3.1  (lower  level  of  revenues  and  therefore 
increasing  funding  from  the  past  accumulated  budgetary  results),  the  impact  being 
slightly lower after 2025. 

86 

 
 
 
 
 
 
 
Table A.7.9 – Implications of sub-option 3.2 

87 

 
 
 
 
 
 
 
 
 
ANNEX 8: MEMBER STATE FEES 

Abbreviations: 

D: Design; E: Electronic; GP: Grace Period; MA: Multiple Applications; P: Paper; surch.: surcharge 

Filing 

Costs(175) 

Deferment 

Renewals 

AT 

82(E) / 87(P)  

see 
also 
here 
and 
here 

+ 15.50 per class 

MA: 

142(E) / 147(P)  

+ 20 for 2nd - 10th 

+ 18.50 as of 11th 

BLX 

150(E) / 172(P) 

+ 42(E) / 48(P) adding a characteristic 
feature 

+ 12(E) / 13(P) registration of priority 
declaration 

MA: 

+ 75(E) / 86(P) for 2nd - 10th D 

+ 38(E) / 43(P) for 11th - 20th D 

+ 32(E) / 36(P) for 21st - 50th D 

BG 

20 (40 BGN) filing fee 

+ 35 (70 BGN) examination fee 

+ 90 (180 BGN) registration fee 

+ 25 (50 BGN) registration certificate 

+ 15 (30 BGN) publication fee per view 

+ 10 (20 BGN) for priority claim 

97.50(E) / 102.50(P) 
– 
322(E) / 327(P) 

50% surch. of 
filing fee 

130 
(GP: 156) 

MA: 

88 
(GP: 105.6) 

40 

102 
(GP: 12) 

192(E)(176) / 
220(P)(177) 
– 
825(E)(178) / 
994(P)(179) 

170 (340 BGN)(180) 
– 
1542,50 
(3085 BGN)(181) 

25 (50 BGN) 1st D 

45 (90 BGN) 
composition/set of 
products  

MA: 

51 for 2nd - 10th D 
25 for 11th - 20th D 
21 above 21st D 

Registered for 10 yr. 
– 135 (270 BGN)  
– 180 (360 BGN)  
– 250 (500 BGN)  

(GP: 125 (250 
BGN)) 

MA: 

+ 17.50 (35 BGN) examination fee as of 2nd  

MA: 

12.50 (25 BGN) 
as of 2nd D 

HR 

6.63 (50 HRK) filing fee  

+ 26.43 (200 HRK) administrative fee  

+ 52.87 (400 HRK) maintenance / 
publication fee  

+ 2.65 (20 HRK) publication of description 

20% (E) discount 

68.72(E) (520 HRK) / 
85.91(P) (650 HRK) 
– 
325.6(E) / 407(P) 

47.64 (60 HRK + 
300 HRK) 

60.88 (60 HRK + 
400 HRK) 
(GP: 100% surch.) 

(175) For 1 and 10 designs, including 1 class, colour / characteristic features, publication and registration. 
(176) Claiming a characteristic feature. 
(177) Claiming a characteristic feature. 
(178) Claiming characteristic features. 
(179) Claiming characteristic features. 
(180) Claiming priority (without registration certificate, one view). 
(181) Claiming priority (without registration certificate, one view per design). 

88 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
Designer: 50% discount 

MA: 

Per D: 

+ 2.65 (20 HRK) filing fee 

+ 6.63 (50 HRK) administrative fee 

+ 26.52 (200 HRK) publication fee 

CY 

85.43 filing fee 

205.03 

42.72 

+ 51.26 registration fee  

+ 68.34 publication fee  

CZ 

39.19 (1 000 CZK)  

Designer: 50% discount 

MA: 

+ 23.51 (600 CZK) as of 2nd D 

39.19 
– 
250.82 

No surch. 

DK 

161.14 (1 200 DKK)  

+ 53.71 (400 DKK) publication fee for each 
reproduction (view) as of 2nd 

161.14(182) 
– 
1 007.14(183) 

MA: 

+ 94 (700 DKK) as of 2nd D 

EE 

105 

+ 26 as of the 3rd variant(184) 

Natural persons: 26 

105 
– 
339 

39 filing fee for 5 yr. registration 

+ 23 publication fee b&w 

+ 47 publication fee colour 

FR 

See 
also 

here 

86(185)  
– 
509(186) 

No surch. 
(payment of 
publication fee 
can be delayed) 

MA: 

29.78 (25 HRK + 
200 HRK) per D 

– 85.43  
– 136.69  
– 170.86  
– 256.29 

– 117.57 (3 000 
CZK)  
– 235.15 (6 000 
CZK)  
– 352.73 (9 000 
CZK)  
– 470.33 (12 000 
CZK)  

The fee is also per 
MA, irrespective of 
how many designs 
are included. 

295.42 (2 200 DKK)  
(GP: 20% surch.) 

MA: 

147.71 (1 100 DKK) 
per D 

– 130  
– 260  
– 260 
– 260 

(GP: 45 surch.)  

52 
(GP: 50% surch.) 

(182) 1 view. 
(183) each 1 view. 
(184) Industrial designs may have variants. The variants of an industrial design are such modifications of the 
industrial design which produce a similar overall impression on persons skilled in the art. 
(185) In colour. 
(186) In colour. 

89 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
FI 

250(E) / 300(P) 

+ 55 as of 2nd class 

+ ? publication fee per additional view 

250(E) / 300(P) 
– 
1 420(E) / 1 470(P) 

MA: 

+ 130 per D as of 2nd 

DE 

60(E) / 70(P) 

MA: 

60(E) / 70(P) 
– 
120(E) / 140(P) 

30 

MA: 

+ 60(E) / 70(E) as of 2nd D for up to 10 D 
together 

+ 6(E) / 7(P) as of 11th D 

+ 30 for 2 - 10 D 
together 

+ 3 as of 11th D 

380 

+ 55 as of 2nd class 

MA: 

+ 130 as of 2nd D 

– 90  
– 120  
– 150  
– 180  

(GP: 50 surch.) 

EL 

100 

+ 30 publication fee 

MA: 

+ 10 as of 2nd D 

+ 10 publication fee as of 2nd D  

HU 

89.84 (32 000 HUF) 

Designer: 22.20 (8 000 HUF)  

MA: 

+ 17.97 (6 400 HUF) as of 2nd D 

Designer: + 4.40 (1 600 HUF) as of 2nd D 

IE 

70 

MA: 

+ 25 as of 2nd D  

IT 

50(E) / 100(P) 

+ 40(P) 
+ fee and photocopy fees 

MA: 

100(E) / 200(P) per MA (up to 100 incl.) 

+ 40 fee when filed via chamber of 
commerce 

130 
– 
310 

89.84 
– 
251.57 

70 
– 
295 

50 
– 
140 

LV 

36(E) / 40(P) 

+ 58.5(E) / 65(P) publication and registration 
fee 

+ 9(E) / 10(P) for each additional view  

Designers pay 40% of fee 
Pupils, students, pensioners, disabled pay 
20% of fee 

94,5(E) / 105(P) 
– 
364.5(E) / 375(P) 

40 

90 

30 

MA: 

+ 10 as of 2nd D 

– 100  
– 150  
– 200  
– 250 

35 

No surch. 

– 179.69 (64 000 
HUF)  
– 239.77 (85 400 
HUF) 
– 300.41 (107 000 
HUF)  
– 449.22 (160 000 
HUF)  

50% discount on all 
these fees for 
designer. 

– 50  
– 70  
– 80 
– 100 
(GP: 100 surch.)  

– 30  
– 50  
– 70  
– 80  

(GP: 100 surcharge)  

The fee is also per 
MA, irrespective of 
how many designs 
are included. 

– 170  
– 225  
– 280 
– 335  

(GP: 70 surcharge) 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
34 “resumption” 

MA: 

+ 27(E) / 30(P) for 2nd - 10th D 

+ 18(E) / 20(P) for 11th - 20th D 

LT 

69 

+ 69 registration and publication fee 

Natural persons: 50% 

MA: 

+ 26 as of 11th design  

MT 

46.59 

PL 

67.08 (300 PLN) – filing fee per design 
covering up to 10 forms of an industrial 
design with the same essential features 

+ EUR 22.36 EUR (PLN 100) priority claim 
per design 

+ EUR 15.65 (PLN 70) publication fee 

+ EUR 33.54 (PLN 150) registration fee 

138 
– 
1380 

46.59 
– 
465.9 

138.63 
– 
1386.3 

PT 

107.62(E) / 215.24(P) for ≤ 5 D incl. 

MA: 

+ 10.77(E) / 21.53(P) per D 

107.62(E) / 215.24(P) 
– 
161.47(E) / 322.89(P) 

32.29(E) / 
64.57(P) 

– 86  
– 115  
– 144  
– 173  

(GP: 50% surch.) 

34.94  

(GP: 100% surch.) 

– 55.76 (250 PLN)  
– 111.52 (500 PLN)  
– 223.04 (1000 
PLN) 
– 446.08 (2000 
PLN)  

(fees were reduced 
in 2016) 

– 32.29(E) / 
64.57(P) 
– 43.05(E) / 
86.10(P) 
– 53.81(E) / 
107.62(P)  
– 64.57(E) / 
129.15(P) 

180 
– 
1260 

20 

100 for 1-20 designs 

RO 

30 filing fee 

+ 50 examination fee  

+ 20 publication fee for b&w  

+ 100 publication fee for colour  

+ 10 publication fee for words 

+ 20 for priority claim 

MA: 

+ 10 as of 2nd D  

+ 10 examination fee as of 2nd D  

SK 

40 

Designer: 20 

MA: 

+ 20 as of 2nd D 

Designer: + 10 as of 2nd D 

SI 

80 

125 for 21-50 
designs 

150 for 51-100 
designs  

Plus costs for the 
renewal certificate 

– 100  
– 200  
– 300  
– 400  
(GP: 100% surch.) 

70 

20 

40 
– 
220 

80 
– 

91 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
MA: 

65 as of 2nd D 

665 

ES 

64.96(E) / 76.43(P) for ≤ 10 D incl. 

+ 7.75 per priority claim(P) 

72.71(E) / 84.18(P) 
– 
72.71(E) / 84.18(P) 

MA: 

+ 56.86(E) / 66.88(P) for 11th - 20th D 

+ 47.21(E) / 55.54(P) for 21st - 30th D 

+ 37.77(E) / 44.45(P) for 31st - 40th D 

+ 30.25(E) / 35.58(P) for 41st - 50th D 

SE 

196.05(E) (2000 SEK) / 244.40(P) (2 500 
SEK) 

+ 48.88 (500 SEK) as of 2nd class 

+ 19.55 (200 SEK) – publication fee as of 
the 2nd view per D 

196.05(E) (2 000 
SEK) / 244.40(P) ( 
2 500 SEK) 
– 

1 421.98(E) (14 600 
SEK) / 1 470.67(P) 
(15 100 SEK) 

MA: 

+ 136.87 (1 400 SEK) – registration fee as of 
2nd D 

83.85(E) / 98.65(P) 

(GP: 41.50(E) / 
48.82(P)) 

MA: 

– 67.09(E) / 
78.93(P) each D 11th 
- 20th 
– 53.66(E) / 
63.13(P) each D 21st 
- 30th 
– 42.94(E) / 
50.52(P) each D 31st 
- 40th 
– 34.34(E) / 
40.40(P) 
each D 41st - 50th 

244.40(E) (2 500 
SEK)  
/ 
295.20(P) (3 000 
SEK) 

(GP: 48.89 (500 
SEK)) 

92 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
ANNEX 9: IMPACT OF FEE CHANGES AND OTHER SIMPLIFICATIONS 

9.1 Proposed changes and summary of impacts 

The  table  below  presents  the  current  and  proposed  fee  structure  for  the  Registered 
Community Design.  

Table A.9.1. Overview of current and proposed structure for RCD (in EUR) 

First 5 year period 
No of designs per application 

Current  

Option 3.1 

Option 3.2 

1 
2-10 
11 and more* 

1st 
2nd  
3rd  
4th  

350 
175 
80 

250 
125 
125 

Cost of each renewal (each for 5 years) 

90 
120 
150 
180 

70 
140 
280 
560 

250 
100 
100 

80 
160 
320 
640 

* No limit currently, in case of Option 3.1 and 3.2 limit of 50 designs per application  
Source: Own assessment  

9.2 Changes in basic registration fee 

The  new  fee  structure  will  benefit  designers  who  include  up  to  22  designs  in  a  single 
application in case of Opt 3.1 and up to 48 designs in case of Opt. 3.2 (see Figure A.9.1). 
The largest cost saving in case of Opt. 3.1. amounts to 29% for those including from 1 to 
10 designs per application. Opt. 3.2. delivers higher saving than Opt. 3.1, with maximum 
of 40% for those including 8-10 designs in a single application.  

Figure A.9.1.  Percentage savings from proposed option per number of designs included in application 

Source: Own assessment. 

For  2019  and  2020  the  average  number  of  designs  per  application  was  3.4  for  all 
applicants,  3.7  for  companies,  and  2.4  for  individuals.  Therefore,  an  average  applicant 

93 

-30%-20%-10%0%10%20%30%40%50%135791113151719212325272931333537394143454749Savings as % of current feesNumber of designs in applicationOption 3.1Option 3.2 
 
 
 
will  save  around  EUR  142  in  case  of  Opt.  3.1  and  EUR  203  in  case  of  Opt.  3.2.  The 
average  saving  for  individuals  will  be  EUR  132  and  EUR  166  in  case  of  Opt.  3.1  and 
Opt.  3.2  respectively.  The  average  savings  for  companies  arrive  at  EUR  144  and  EUR 
211 respectively in case of Opt. 3.1 and Opt. 3.2 (see table 9.2).  

Table  A.9.2.  Application  fee  saving  by  option  and  average  number  of  designs  per  application  in  2019-
2020. 

Companies 
3.7 

Individuals 
2.3 

All 
3.4 

Average number of designs per 
application 
Avg. fee current system 
Avg. fee Opt. 3.1 
Avg. fee Opt. 3.2 
Opt 3.1 savings (EUR, %)  
Opt 3.2 savings (EUR, %) 
Source:  Own  assessment  based  on  EUIPO  data,  numbers  based  on  whole  distribution  see  next  table, 
numbers rounded 

729 
585 
518 

551 
419 
385 

695 
552 
492 

24% 
30% 

20% 
29% 

20% 
29% 

144 
211 

132 
166 

142 
203 

Taking  into  account  the  historical  distribution  of  number  of  designs  per  application, 
97.7%  of  applications  will  experience  cost  saving  on  the  basic  fee  in  case  Opt  3.1  is 
selected and 99% in case of Opt. 3.2 (see table 9.3). 

Table A.9.3. Application fee saving by option and number of designs per application 

No. of 
designs per 
application 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
29 
30 

% of 
applications  
(2019-2020) 
54.8% 
15.8% 
7.7% 
5.5% 
3.0% 
2.6% 
1.4% 
1.5% 
0.9% 
1.0% 
0.5% 
0.6% 
0.4% 
0.3% 
0.3% 
0.3% 
0.2% 
0.2% 
0.2% 
0.2% 
0.1% 
0.1% 
0.1% 
0.1% 
0.1% 
0.1% 
0.1% 
0.1% 
0.1% 
0.1% 

Cumulative 
% 

54.8% 
70.7% 
78.4% 
83.9% 
87.0% 
89.6% 
90.9% 
92.4% 
93.3% 
94.3% 
94.8% 
95.4% 
95.8% 
96.1% 
96.4% 
96.7% 
96.9% 
97.2% 
97.3% 
97.5% 
97.6% 
97.7% 
97.9% 
98.0% 
98.1% 
98.2% 
98.2% 
98.3% 
98.4% 
98.5% 

Option 3.1 savings 

Option 3.2 savings 

% from 
current 
29% 
29% 
29% 
29% 
29% 
29% 
29% 
29% 
29% 
29% 
25% 
22% 
19% 
16% 
14% 
12% 
9% 
7% 
5% 
4% 
2% 
0% 
-1% 
-3% 
-4% 
-5% 
-7% 
-8% 
-9% 
-10% 

EUR 

100 
175 
250 
325 
400 
475 
550 
625 
700 
775 
755 
735 
715 
695 
675 
655 
635 
615 
595 
575 
555 
535 
515 
495 
475 
455 
435 
415 
395 
375 

% from 
current 
29% 
33% 
36% 
37% 
38% 
39% 
39% 
40% 
40% 
40% 
38% 
35% 
33% 
31% 
29% 
27% 
26% 
24% 
22% 
21% 
20% 
19% 
17% 
16% 
15% 
14% 
13% 
12% 
11% 
11% 

EUR 

100 
150 
200 
250 
300 
350 
400 
450 
500 
550 
505 
460 
415 
370 
325 
280 
235 
190 
145 
100 
55 
10 
-35 
-80 
-125 
-170 
-215 
-260 
-305 
-350 

94 

 
 
 
EUR 

EUR 

Cumulative 
% 

Option 3.1 savings 

Option 3.2 savings 

No. of 
designs per 
application 
31 
32 
33 
34 
35 
36 
37 
38 
39 
40 
41 
42 
43 
44 
45 
46 
47 
48 
49 
50 

% of 
applications  
(2019-2020) 
0.1% 
0.1% 
0.0% 
0.1% 
0.0% 
0.0% 
0.0% 
0.0% 
0.0% 
0.0% 
0.0% 
0.0% 
0.0% 
0.0% 
0.0% 
0.0% 
0.0% 
0.0% 
0.0% 
0.9% 
Weighted average savings 

-395 
-440 
-485 
-530 
-575 
-620 
-665 
-710 
-755 
-800 
-845 
-890 
-935 
-980 
-1025 
-1070 
-1115 
-1160 
-1205 
-1250 
142 
Notes: * Currently there is no limit for designs per application. A cap at 50 would apply in Opt 3.1 and 
3.2. Applications above 50 added to the 50 bracket. Note: Negative saving is an increase in costs. 
Source: Own assessment based on EUIPO data 

% from 
current 
10% 
9% 
8% 
8% 
7% 
6% 
6% 
5% 
5% 
4% 
4% 
3% 
3% 
2% 
2% 
1% 
1% 
0.3% 
-0.1% 
-0.5% 
29% 

% from 
current 
-11% 
-12% 
-13% 
-14% 
-15% 
-15% 
-16% 
-17% 
-18% 
-18% 
-19% 
-20% 
-20% 
-21% 
-22% 
-22% 
-23% 
-23% 
-24% 
-24% 
20% 

98.5% 
98.6% 
98.6% 
98.6% 
98.7% 
98.7% 
98.8% 
98.8% 
98.8% 
98.9% 
98.9% 
98.9% 
98.9% 
99.0% 
99.0% 
99.0% 
99.0% 
99.0% 
99.1% 
100.0% 

355 
335 
315 
295 
275 
255 
235 
215 
195 
175 
155 
135 
115 
95 
75 
55 
35 
15 
-5 
-25 
203 

9.3 Changes in renewal fees 

The  new  renewal  fees  will  affect  both  new  and  current  users  of  design  protection.  The 
basic protection period lasts five years. It is possible to renew up to four times, each time 
for a five-year period (for the total maximum period of protection of 25 years). 

Table A.9.4. Overview of current and proposed renewal fees for RCD (in EUR) 

renewal  

Current  

Option 3.1 

Option 3.2 

1st (after 5 years) 
2nd (after 10 years) 
3rd (after 15 years) 
4th (after 20 years) 
Note: PV – present value, ECB inflation target of 2% per year used as the discount rate 
Source: Own assessment  

nominal 
70 
140 
280 
560 

PV 
63 
115 
208 
377 

nominal 
90 
120 
150 
180 

PV 
82 
98 
111 
121 

nominal 
80 
160 
320 
640 

PV 
72 
131 
238 
431 

The  proposed  structure  lowers  the  first  renewal  fee  as  compared  to  the  current  system 
and increases subsequent renewal fees, with the most dramatic raises for the 3rd and 4th 
renewal. For all calculations below, and to ease comparison, the present value of future 
fees is used (see Table A.9.4). 

The following table presents savings and cost increases from Opt 3.1. 

Table A.9.5. Total cost difference of protection for a given period of time between Opt. 3.1 and current 
fees dependent on number of designs. In present value in EUR (left) and as percentage of current fees 
(right). 

5 yrs. 
-100 

10 yrs. 
-118 

15 yrs. 
-102 

20 yrs. 
-5 

25 yrs. 
251 

1 

5 yrs. 

-29% 

10 yrs. 
-27% 

15 yrs. 
-19% 

20 yrs. 
-1% 

25 yrs. 
33% 

95 

 
 
 
 
 
 
5 yrs. 
-150 
-200 
-250 
-300 
-350 
-400 
-450 
-500 
-550 
-505 
-460 
-415 
-370 
-325 
-280 
-235 
-190 
-145 
-100 
-55 
-10 
35 
80 
125 
170 
215 
260 
305 
350 
395 
440 
485 
530 
575 
620 
665 
710 
755 
800 
845 
890 
935 
980 
1,025 
1,070 
1,115 
1,160 
1,205 
1,250 

2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
29 
30 
31 
32 
33 
34 
35 
36 
37 
38 
39 
40 
41 
42 
43 
44 
45 
46 
47 
48 
49 
50 

10 yrs. 
-186 
-254 
-322 
-391 
-459 
-527 
-595 
-663 
-731 
-704 
-677 
-650 
-624 
-597 
-570 
-543 
-516 
-489 
-462 
-435 
-409 
-382 
-355 
-328 
-301 
-274 
-247 
-220 
-193 
-167 
-140 
-113 
-86 
-59 
-32 
-5 
22 
49 
75 
102 
129 
156 
183 
210 
237 
264 
290 
317 
344 

15 yrs. 
-153 
-205 
-257 
-309 
-360 
-412 
-464 
-515 
-567 
-524 
-480 
-437 
-394 
-351 
-307 
-264 
-221 
-177 
-134 
-91 
-48 
-4 
39 
82 
126 
169 
212 
255 
299 
342 
385 
429 
472 
515 
559 
602 
645 
688 
732 
775 
818 
862 
905 
948 
991 
1,035 
1,078 
1,121 
1,165 

20 yrs. 
40 
85 
130 
174 
219 
264 
309 
354 
399 
539 
679 
818 
958 
1,098 
1,238 
1,378 
1,518 
1,658 
1,798 
1,938 
2,077 
2,217 
2,357 
2,497 
2,637 
2,777 
2,917 
3,057 
3,197 
3,336 
3,476 
3,616 
3,756 
3,896 
4,036 
4,176 
4,316 
4,455 
4,595 
4,735 
4,875 
5,015 
5,155 
5,295 
5,435 
5,575 
5,714 
5,854 
5,994 

25 yrs. 
551 
852 
1,152 
1,453 
1,754 
2,054 
2,355 
2,656 
2,956 
3,352 
3,747 
4,143 
4,539 
4,934 
5,330 
5,725 
6,121 
6,517 
6,912 
7,308 
7,703 
8,099 
8,495 
8,890 
9,286 
9,682 
10,077 
10,473 
10,868 
11,264 
11,660 
12,055 
12,451 
12,846 
13,242 
13,638 
14,033 
14,429 
14,825 
15,220 
15,616 
16,011 
16,407 
16,803 
17,198 
17,594 
17,989 
18,385 
18,781 

5 yrs. 

-29% 
-29% 
-29% 
-29% 
-29% 
-29% 
-29% 
-29% 
-29% 
-25% 
-22% 
-19% 
-16% 
-14% 
-12% 
-9% 
-7% 
-5% 
-4% 
-2% 
0% 
1% 
3% 
4% 
5% 
7% 
8% 
9% 
10% 
11% 
12% 
13% 
14% 
15% 
15% 
16% 
17% 
18% 
18% 
19% 
20% 
20% 
21% 
22% 
22% 
23% 
23% 
24% 
24% 

10 yrs. 
-27% 
-27% 
-27% 
-27% 
-27% 
-27% 
-27% 
-27% 
-27% 
-24% 
-22% 
-20% 
-18% 
-17% 
-15% 
-14% 
-13% 
-12% 
-11% 
-10% 
-9% 
-8% 
-7% 
-6% 
-6% 
-5% 
-4% 
-4% 
-3% 
-3% 
-2% 
-2% 
-1% 
-1% 
0% 
0% 
0% 
1% 
1% 
1% 
2% 
2% 
2% 
3% 
3% 
3% 
3% 
4% 
4% 

15 yrs. 
-17% 
-17% 
-16% 
-16% 
-16% 
-15% 
-15% 
-15% 
-15% 
-13% 
-11% 
-10% 
-8% 
-7% 
-6% 
-5% 
-4% 
-3% 
-2% 
-1% 
-1% 
0% 
1% 
1% 
2% 
2% 
3% 
3% 
3% 
4% 
4% 
4% 
5% 
5% 
5% 
6% 
6% 
6% 
6% 
7% 
7% 
7% 
7% 
7% 
8% 
8% 
8% 
8% 
8% 

20 yrs. 
4% 
5% 
6% 
7% 
7% 
8% 
8% 
8% 
8% 
10% 
12% 
14% 
15% 
16% 
18% 
19% 
19% 
20% 
21% 
22% 
22% 
23% 
23% 
24% 
24% 
25% 
25% 
26% 
26% 
26% 
27% 
27% 
27% 
28% 
28% 
28% 
28% 
29% 
29% 
29% 
29% 
29% 
30% 
30% 
30% 
30% 
30% 
30% 
30% 

25 yrs. 
41% 
44% 
46% 
47% 
47% 
48% 
48% 
49% 
49% 
51% 
53% 
55% 
57% 
58% 
59% 
60% 
61% 
62% 
63% 
64% 
64% 
65% 
66% 
66% 
67% 
67% 
68% 
68% 
68% 
69% 
69% 
69% 
70% 
70% 
70% 
70% 
71% 
71% 
71% 
71% 
72% 
72% 
72% 
72% 
72% 
72% 
73% 
73% 
73% 

Source: Own assessment, present value of future fees used as per Tab. A.9.4.  

In case Opt 3.1 is selected, those having one design per application (55%) will be able to 
protect their designs at lower cost than currently for up to 20 years. Those with between 2 
and  23  designs  (43%)  will  be  able  to  protect  them  at  lower  cost  than  currently  for  a 
period of up to 15 years. Those with 24 to 37 designs (1%) will pay less for protection of 
up to 10 years. The remaining 1% will pay more than currently. 

Table A.9.6. Total cost difference of protection for a given period of time between Opt. 3.2 and current 
fees. In present value in EUR (left) and as percentage of current fees (right). 

96 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
5 yrs. 
-100 
-175 
-250 
-325 
-400 
-475 
-550 
-625 
-700 
-775 
-755 
-735 
-715 
-695 
-675 
-655 
-635 
-615 
-595 
-575 
-555 
-535 
-515 
-495 
-475 
-455 
-435 
-415 
-395 
-375 
-355 
-335 
-315 
-295 
-275 
-255 
-235 
-215 
-195 
-175 
-155 
-135 
-115 
-95 
-75 
-55 
-35 
-15 
5 
25 

1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
29 
30 
31 
32 
33 
34 
35 
36 
37 
38 
39 
40 
41 
42 
43 
44 
45 
46 
47 
48 
49 
50 

10 yrs. 
-109 
-193 
-277 
-361 
-445 
-529 
-613 
-697 
-782 
-866 
-855 
-844 
-833 
-822 
-811 
-800 
-789 
-778 
-767 
-756 
-745 
-734 
-723 
-712 
-701 
-690 
-680 
-669 
-658 
-647 
-636 
-625 
-614 
-603 
-592 
-581 
-570 
-559 
-548 
-537 
-526 
-515 
-504 
-494 
-483 
-472 
-461 
-450 
-439 
-428 

15 yrs. 
-76 
-127 
-179 
-230 
-281 
-332 
-384 
-435 
-486 
-537 
-494 
-450 
-406 
-362 
-319 
-275 
-231 
-187 
-144 
-100 
-56 
-12 
31 
75 
119 
163 
206 
250 
294 
338 
381 
425 
469 
513 
556 
600 
644 
688 
732 
775 
819 
863 
907 
950 
994 
1,038 
1,082 
1,125 
1,169 
1,213 

20 yrs. 
50 
125 
200 
275 
350 
425 
500 
576 
651 
726 
896 
1,066 
1,236 
1,406 
1,576 
1,746 
1,916 
2,086 
2,256 
2,426 
2,596 
2,767 
2,937 
3,107 
3,277 
3,447 
3,617 
3,787 
3,957 
4,127 
4,297 
4,467 
4,637 
4,807 
4,977 
5,147 
5,318 
5,488 
5,658 
5,828 
5,998 
6,168 
6,338 
6,508 
6,678 
6,848 
7,018 
7,188 
7,358 
7,528 

25 yrs. 
360 
744 
1,129 
1,514 
1,898 
2,283 
2,667 
3,052 
3,437 
3,821 
4,301 
4,781 
5,260 
5,740 
6,220 
6,699 
7,179 
7,658 
8,138 
8,618 
9,097 
9,577 
10,057 
10,536 
11,016 
11,496 
11,975 
12,455 
12,934 
13,414 
13,894 
14,373 
14,853 
15,333 
15,812 
16,292 
16,772 
17,251 
17,731 
18,210 
18,690 
19,170 
19,649 
20,129 
20,609 
21,088 
21,568 
22,048 
22,527 
23,007 

5 yrs. 

-29% 
-33% 
-36% 
-37% 
-38% 
-39% 
-39% 
-40% 
-40% 
-40% 
-38% 
-35% 
-33% 
-31% 
-29% 
-27% 
-26% 
-24% 
-22% 
-21% 
-20% 
-19% 
-17% 
-16% 
-15% 
-14% 
-13% 
-12% 
-11% 
-11% 
-10% 
-9% 
-8% 
-8% 
-7% 
-6% 
-6% 
-5% 
-5% 
-4% 
-4% 
-3% 
-3% 
-2% 
-2% 
-1% 
-1% 
0% 
0% 
0% 

10 yrs. 
-25% 
-28% 
-29% 
-30% 
-31% 
-31% 
-31% 
-31% 
-31% 
-32% 
-29% 
-28% 
-26% 
-24% 
-23% 
-22% 
-20% 
-19% 
-18% 
-17% 
-16% 
-16% 
-15% 
-14% 
-14% 
-13% 
-12% 
-12% 
-11% 
-11% 
-10% 
-10% 
-10% 
-9% 
-9% 
-8% 
-8% 
-8% 
-7% 
-7% 
-7% 
-7% 
-6% 
-6% 
-6% 
-6% 
-5% 
-5% 
-5% 
-5% 

15 yrs. 
-14% 
-14% 
-14% 
-14% 
-14% 
-14% 
-14% 
-14% 
-14% 
-14% 
-12% 
-11% 
-9% 
-8% 
-6% 
-5% 
-4% 
-3% 
-2% 
-2% 
-1% 
0% 
0% 
1% 
2% 
2% 
3% 
3% 
3% 
4% 
4% 
5% 
5% 
5% 
5% 
6% 
6% 
6% 
6% 
7% 
7% 
7% 
7% 
8% 
8% 
8% 
8% 
8% 
8% 
9% 

20 yrs. 
8% 
11% 
13% 
13% 
14% 
14% 
15% 
15% 
15% 
15% 
17% 
19% 
21% 
22% 
24% 
25% 
26% 
27% 
28% 
28% 
29% 
30% 
30% 
31% 
31% 
32% 
32% 
33% 
33% 
34% 
34% 
34% 
35% 
35% 
35% 
36% 
36% 
36% 
36% 
36% 
37% 
37% 
37% 
37% 
37% 
38% 
38% 
38% 
38% 
38% 

25 yrs. 
47% 
55% 
58% 
60% 
61% 
62% 
62% 
63% 
63% 
63% 
66% 
68% 
70% 
72% 
73% 
74% 
76% 
77% 
78% 
79% 
79% 
80% 
81% 
81% 
82% 
83% 
83% 
83% 
84% 
84% 
85% 
85% 
85% 
86% 
86% 
86% 
87% 
87% 
87% 
87% 
88% 
88% 
88% 
88% 
88% 
89% 
89% 
89% 
89% 
89% 

Source: Own assessment, present value of future fees used as per Tab. A.9.4.  

In case Opt 3.2 is selected, those having from 1 to 22 designs per application (98%) will 
be able to protect their designs at lower cost than currently for up to 15 years. Those with 
between 22 and 50 designs (2%) will be able to protect them at lower cost than currently 
for a period up to 10 years. 

Not  all  designs  that  are  filed  are  registered  and  even  fewer  are  renewed.  For  instance, 
some products are short-lived and basic protection is sufficient, some designs might not 

97 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
have been a commercial success and their protection is not extended. Based on historical 
data  and  projections  of  EUIPO  the  following  table  shows  average  percentages  of 
applications  that  are  renewed.  Natural  persons  (so  also  firms  not  having  legal  entity) 
renew  designs  from  2.5  to  3.5  times  less  often  than  companies,  and  do  so  for  shorter 
periods (mainly additional 5 years).  

Table A.9.7. Percentages of applications renewed 

Renewal by 
All  
companies 
individuals 
* forecast 
Source: Own calculations based on EUIPO data 

5 years 
49% 
55% 
22% 

% of applications renewed after 
15 years 
10 years 
18% 
29% 
20% 
32% 
6% 
10% 

20 years* 
13% 
14% 
4% 

The following table presents weighted average present value of savings/additional costs 
from considered options based on distribution of applications and propensity to renew. 

Table A.9.8. Change in average fee paid per application by type of applicant and propensity to renew 
 (in EUR per application) 

Application/ 
renewal by 
All  
companies 
individuals 

5 yrs. 

10 yrs. 

-142 
-144 
-132 

-101 
-116 
-39 

Option 3.1 
Protection for: 
15 yrs. 

-42 
-49 
-13 

20 yrs. 

25 yrs. 

33 
42 
5 

132 
163 
28 

renewal by 
All  
companies 
individuals 
Weighted average present value of total fees paid. Assumed distribution of designs in case of renewal to be 
the same as in case of first application. Percentages of renewals from Table A.9.7. 
Source: Own calculations based on EUIPO data 

20 yrs. 
56 
69 
11 

10 yrs. 
-115 
-135 
-41 

25 yrs. 
171 
210 
37 

5 yrs. 
-203 
-211 
-166 

Option 3.2 
Protection for: 
15 yrs. 
-35 
-40 
-11 

The  largest  savings  will  accrue  to  those  that  protect  for  the  basic  or  10  years  term. 
Protection for up to 25 years will become considerably more expensive. 

Table  below  shows  the  distribution  of  savings  and  cost  changes  for  each  protection 
period.  For  instance  99.5%  of  individuals  will  save  on  average  EUR  39  for  protecting 
their designs for 10 years under Option 3.1, while 0.5% of individuals will have to pay 
EUR 0.3 more. 

Table A.9.9. Change in average fee paid by type of applicant and propensity to renew  
(in EUR per application) with % of applications affected 

Application/ 
renewal by 
All  
  Saving: EUR (%) 

5 yrs. 

10 yrs. 

Option 3.1 
Protection for: 
15 yrs. 

20 yrs. 

25 yrs. 

159 (97.7%) 

102 (98.8%) 

47 (97.9%) 

1 (54.8%) 

0 (0%) 

98 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Application/ 
renewal by 
  Loss: EUR (%) 
companies 
  Saving: EUR (%) 
  Loss: EUR (%) 
individuals 
  Saving: EUR (%) 
  Loss: EUR (%) 

5 yrs. 

10 yrs. 

Option 3.1 
Protection for: 
15 yrs. 

20 yrs. 

25 yrs. 

17 (2.3%) 

2 (1.2%) 

5 (2.1%) 

33 (45.2%) 

132 (100%) 

164 (97.4%) 
20 (2.6%) 

118 (98.6%) 
2 (1.4%) 

55 (97.6%) 
6 (2.4%) 

1 (51.9%) 
42 (48.1%) 

0 (0%) 
163 (100%) 

140 (99%) 
7 (1%) 

39 (99.5%) 
0.3 (0.5%) 

14 (99%) 
1 (1%) 
Option 3.2 
Protection for: 

0.2 (67%) 
5 (33%) 

0 (0%) 
28 (100%) 

5 yrs. 

10 yrs. 

15 yrs. 

20 yrs. 

203 (99%) 
0.2 (1%) 

115 (100%) 
0 (0%) 

Application/ 
renewal by 
All  
  Saving: EUR (%) 
  Loss: EUR (%) 
companies 
  Saving: EUR (%) 
  Loss: EUR (%) 
individuals 
  Saving: EUR (%) 
  Loss: EUR (%) 
Weighted average present value of total fees paid. Assumed distribution of designs in case of renewal to be 
the same as in case of first application. Percentages of renewals from Table A.9.7 
Source: Own calculations based on EUIPO data 

166 (99.7%)  
0.1 (0.3%) 

212 (98.8%) 
0.3 (1.1%) 

0 (0%) 
171 (100%) 

135 (100%) 
0 (0%) 

0 (0%) 
210 (100%) 

39 (97.7%) 
5 (2.3%) 

46 (97.4%) 
6 (2.6%) 

0 (0%) 
56 (100%) 

0 (0%) 
69 (100%) 

0 (0%) 
11 (100%) 

0 (0%) 
37 (100%) 

41 (100%) 
0 (0%) 

12 (99%) 
1 (1%) 

25 yrs. 

9.4 Annual EU-wide impacts of fee changes  

The changes in fees are expected to be fully in force from 2024. It is important to note 
that current RCD owners will also have to pay new renewal fees. 

Below  an  estimation  is  presented  on  the  number  of  design  applications  affected  and 
global savings in the first year of the new fee structure. It is based on the past behaviour 
patterns  of  applicants  regarding  renewal  rates.  In  the  subsequent  years  this  behaviour 
might change following the new structure – for instance the long term protection of 20 to 
25  years  might  decrease  due  to  higher  fees,  while  there  might  be  more  companies 
choosing to protect for the basic or 10 years period. 

The  most  accurate  data  from  EUIPO  is  collected  at  the  level  of  designs.  In  particular 
renewal  statistics  are  based  on  designs  and  not  applications  (one  can  renew  individual 
designs  and  not  necessarily  all  designs  from  a  multiple  application).  Therefore,  the 
numbers below are approximations and thus can differ from those presented in the impact 
on EUIPO budget (where also e.g. the fourth renewal is not considered). It is also to be 
noted that those applying, and those renewing each year might be different. There is no 
obligation  to  renew,  so  all  fees  are  one-off  dependent  on  preference  of  design  owner. 
Impact  each  year will depend on the number of applications/renewals.  The table below 
shows the expected impact in the first year of the new fee regime. 

Table A.9.10. Impact of fee change in 2024 

All applications 
Option 3.1 

99 

Option 3.2 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
No of 
applications 
35,698 
14,988 
7,689 
3,289 
1,708 
63,371 
61,663 

Saving per 
application 
(EUR) 
-142 
-71 
72 
468 
1,374 
-27 
-66 

Total saving 
(EUR million) 
-5.1 
-1.1 
0.6 
1.5 
2.3 
-1.7 
-4.1 

Saving per 
application 
(EUR) 
-203 
-36 
144 
612 
1,663 
-29 
-75 

Total saving 
(EUR million) 
-7.2 
-0.5 
1.1 
2.0 
2.8 
-1.8 
-4.6 

Application 
Renewal 1st period 
Renewal 2nd period 
Renewal 3rd period 
Renewal 4th period* 
Total 
Total less 4th renewal 

Application by companies (legal persons) 
Option 3.1 

Option 3.2 

No of 
applications 
28,777 
13,753 
7,220 
3,094 
1,627 
54,471 
52,844 

Saving per 
application 
(EUR) 
-144 
-74 
74 
478 
1,398 
-16 
-60 

Total saving 
(EUR million) 
-4.2 
-1.0 
0.5 
1.5 
2.3 
-0.9 
-3.2 

Saving per 
application 
(EUR) 
-144 
-74 
74 
478 
1,398 
-16 
-60 

Total saving 
(EUR million) 
-6.1 
-0.5 
1.1 
1.9 
2.8 
-0.8 
-3.6 

Application 
Renewal 1st period 
Renewal 2nd period 
Renewal 3rd period 
Renewal 4th period 
Total 
Total less 4th renewal 

Application by persons (natural persons, including firms not incorporated) 
Option 3.1 

Option 3.2 

No of 
applications 
6,921 
1,235 
468 
195 
81 
8,900 
8,819 

Saving per 
application 
(EUR) 
-132 
-47 
47 
305 
893 
-92 
-101 

Application 
Renewal 1st period 
Renewal 2nd period 
Renewal 3rd period 
Renewal 4th period 
Total 
Total less 4th renewal 
Notes: * full assumption, there is no experience yet with 4th renewal. Weighted average present value of 
total fees paid. Assumed distribution of designs in case of renewal to be the same as in case of first 
application. 
Source: Own calculations based on EUIPO data. 

Total saving 
(EUR million) 
-0.9 
-0.1 
0.02 
0.1 
0.1 
-0.8 
-0.9 

Saving per 
application 
(EUR) 
-166 
-23 
94 
399 
1,081 
-109 
-120 

Total saving 
(EUR million) 
-1.1 
0.0 
0.04 
0.1 
0.1 
-1.0 
-1.1 

9.5 Impacts of fee changes on number of designs applications 

Based on experience with past trade mark fee decreases, the EUIPO concluded that there 
should  be  no  significant  impact  on  the  number  of  designs  applications  from  RCD  fee 
decreases proposed by options 3.1 and 3.2. Consequently, for their budgetary planning as 
explained in Annex 7 they estimated a historic growth rate for the number of designs187 at 
3.1% for the years 2021 to 2025 (so covering two years of the potential new fee regime). 

Looking at the relationship between the present value of fees and number of applications, 
a  strong  negative  correlation  can  be  seen  (which  does  not  necessarily  mean  causality). 

187 Please note this is based on designs and not applications. 

100 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
The  chart  below  plots  the  present  value  of  fees  paid  for  an  average  application  in  the 
given year and the number of applications in that year during the period 2008 and 2020. 

Figure A.9.2. Relationship between the number of applications and the present value of fees for an average 
application between 2008 and 2020. 

HICP  –  annual  inflation  data  (average  index  and  rate  of  change)  [prc_hicp_aind]  used  as  deflator 
Source: Own assessment base on EUIPO data and Eurostat (for deflator) 

This  allows  for  computing  a  simplified  prediction  of  the  number  of  applications  in  the 
near  future  following  the  fee  change.  If  the  above  relationship  would  hold,  it  can  be 
expected that in 2030 Opt. 3.1 will result in around 15% more design applications than 
under the current fee structure, and Opt. 3.2 in around 21% more applications. This could 
translate into additional 2,300-2,500 design owners (Opt. 3.1) to 3,200 to 3,400 (Opt 3.2) 
in 2030 (to proxy the number of affected owners the average number of applications per 
owner is used). 

Robustness and limitations of these calculations: 

This  is  a  very  simplified  prediction  based  on  a  low  number  of  available  observations. 
Therefore, the results should be treated with caution. 

We have additionally checked the relationship between the number of RCD applications 
and  a)  real  GDP,  and  b)  real  GDP  and  present  value  of  fees.  In  case  a)  coefficient  of 
determination was equal only to R2=58%, while in case b) it was R2=95%, so still lower 
than  in  case  the  PV  of  fees  is  used  as  the  sole  explanatory  variable.  Logarithmic 
equations have been also tried which also resulted in lower R2. Thus, it was decided to 
use only the PV of fees as an explanatory variable. 

It is entirely possible that the growth in design applications is determined by other factors 
which  change  in  the  same  way  as  inflation.  E.g.  real  productivity  growth  of  firms 
applying for design protection. If this is the case, the lowering of fees is unlikely to affect 

101 

R² = 0.959810,00015,00020,00025,00030,00035,000500.0550.0600.0650.0700.0750.0RCD applicationsPV of feeof an average application 
 
 
firms overall productivity, and consequently will not significantly change the demand for 
design protection. Nevertheless, due to lack of data describing applicant firms it has to be 
relied on the PV of fees as the best proxy explanatory variable. 

9.6 Impact of elimination of transfer fee 

The elimination of the transfer fee should produce savings of around EUR 200 per each 
transferred design. It is expected to affect in 2024 around 3,000 designs (around 3% of all 
designs filed annually). This translates to around 375 owners affected in 2024 (to proxy 
the number of affected owners we use the average number of designs per owner). 

9.7 Impact of limiting multiple submissions to 50 designs per application 

The current RCD system allows for an unlimited number of designs to be combined in a 
single  multiple  application.  Based  on  2019-2020  data,  0.46%  of  applications  had  51  or 
more designs. A cap of 50 designs per application is proposed to limit potential abuses of 
bundling  designs  in  absence  of  the  transfer  fee.  The  cap  for  those  applicants  would 
constitute an increase in cost, as instead of one application they would have to submit on 
average almost two. Thus, the number of applications in the last 50 bracket in the above 
tables/calculations was increased by 0.45% for all applications, by 0.53% for companies 
and 0.16% for individuals. 

Taking the 2024 application projections, the increase of fees due to the cap would affect 
around 173 applications who would need to spend additional EUR 1,000 on average. The 
total additional burden of those applicants would increase by around EUR 180,500; for 
companies by EUR 167,000 and for individuals by around EUR 13,500. 

Table A.9.11. Cost increase due to 50 cap in 2024 

No of applications in 50+ 
bracket 
173 
160 
13 

Additional cost per 
application 
1,043 
1,044 
1,022 

Total cost increase 

180,438 
166,971 
13,467 

All  
companies 
natural persons 
Source: Own assessment  

9.8 Comparison to national registration fees 

The  new  few  structure  will  affect  the  attractiveness  of  national  protection  in  several 
Member States as an alternative to EUIPO EU-wide protection. 

Detailed national fees are presented in  Annex 8, below just an extract concerning basic 
paper and electronic fees and fees for multiple applications. 

Table A.9.12. National IP offices fees for the basic protection (EUR) 

Office 

Paper - fee 

Electronic fee 

AT 
BG 
BLX 
CY 

102.50 
170.00 
220.00 
205.03 

97.50 
170.00 
192.00 
205.03 

Electronic 2-10 
design 
20.00 
17.50 
75.00 
0.00 

102 

 
 
 
 
Office 

Paper - fee 

Electronic fee 

CZ 
DE 
DK 
EE 
ES 
FI 
FR 
GR 
HR 
HU 
IE 
IT 
LT 
LV 
MT 
PL 
PT 
RO 
SE 
SI 
SK 

39.19 
70.00 
161.14 
105.00 
84.18 
300.00 
86.00 
130.00 
85.91 
89.84 
70.00 
100.00 
138.00 
105.00 
46.59 
138.63 
215.24 
180.00 
244.40 
80.00 
40.00 

39.19 
60.00 
161.14 
105.00 
72.71 
250.00 
86.00 
130.00 
68.72 
89.84 
70.00 
50.00 
138.00 
94.50 
46.59 
138.63 
107.62 
180.00 
196.05 
80.00 
40.00 

Electronic 2-10 
design 
23.51 
60.00 
94.00 
0.00 
72.71 
130.00 
86.00 
10.00 
35.80 
17.97 
25.00 
100.00 
26.00 
27.00 
46.59 
138.63 
10.77 
10.00 
136.87 
65.00 
20.00 

Source: EUIPO data 

In  all  cases  the  electronic  fee  is  cheaper,  thus  it  is  used  for  further  calculations.  In  all 
cases the EUIPO current fee and proposed new fee is more expensive than any individual 
Member State fee (except for FI paper fee). 

Under the current system of basic fee of EUR 350, it was more cost efficient to choose 
national  protection when one sought  it in  on average 4 (ranging from  3 to 5) other EU 
Member States. Under the proposed basic fee of EUR 250 national protection would be 
most  efficient  when  protecting  in  2.9  Member  States  (ranging  from  1.5  to  3.6)  on 
average.  

It is assumed that in particular smaller businesses would seek design protection solely in 
the neighbouring countries. In such case, under the current fee structure, it is cheaper to 
seek basic protection of a single design at the EUIPO in case of 16 Member States. Under 
the  new  fee  structure,  it  will  be  cheaper  in  case  of  23  Member  States  (preference  will 
change  in  case  of  BE-NL-LU,  CY,  ES,  IT,  LV).  Taking  into  account  that  in  2020  the 
average number of designs per application was 3.3, and that several Member States offer 
discounts  for  multiple  filings,  the  EUIPO  option  is  preferred  to  multiple  national 
protections  in  19  Member  States  currently,  in  23  Member  States  under  Opt.  3.1 
(preference will change for BG, ES, LV, RO) and in 25 Member States under Opt. 3.2. 
(+HR) (see table below).  

Table A.9.13. Cost of design protection (electronic filing) just in neighbouring countries (EUR) 

MS 

Neighbours 

Cost of 1 
design 
protection 
(EUR) 

RCD fee more 
attractive for 1 
design 

Opt. 
3.1 and 
3.2 
€250 

Current 
€350 

Cost of 
3.3 
designs 
(EUR) 

RCD fee more attractive for 
application with  
3.3 designs 

Current 
€752.5 

Opt. 3.1 
€537.5 

Opt. 3.2 
€480 

103 

 
 
MS 

Neighbours 

Cost of 1 
design 
protection 
(EUR) 

AT 

DE  CZ  SK  HU  SI  IT 

456.53 

BG 
BE-NL-
LU 
CY 

RO  GR 

DE  FR 

GR 

CZ 

DE 

DK 

EE 

ES 

FI 

FR 

EL 

HR 

HU 

IE 

IT 

LT 

LV 

MT 

PL 

PT 

RO 

SE 

SI 

SK  PL  DE  AT 

AT  BLX  FR  DK  PL CZ 

SE  DE 

FI  LV 

PT  FR 

SE  EE 

DE  ES 

CY  BG 

SI  HU 

BL
X 

IT 

AT  SK  RO  HR  SI 

FR 

FR  AT  SI 

LV  PL 

LT  EE 

IT 

CZ  SK  LT  DE 

ES 

HU  BG 

DK  FI 

HR 

IT  AT  HU 

480 

338 

335.03 

375.32 

774.46 

417.19 

449.5 

266.33 

551.05 

460.71 

505.03 

238.56 

556.06 

156 

313.5 

371.13 

337.5 

96.59 

415.82 

180.33 

439.84 

607.19 

386.06 

SK 

CZ  PL  AT  HU 

405.16 
Number of instances when RCD fee more attractive 

RCD fee more 
attractive for 1 
design 

Opt. 
3.1 and 
3.2 
€250 

yes 

yes 

yes* 

yes 

yes 

yes 

yes 

yes 

yes 

yes 

yes 

yes 

no 

yes 

no 

yes 

yes 

yes 

no 

yes 

no 

yes 

yes 

yes 

yes 

23 

Current 
€350 

yes 

yes 

no 

no 

yes 

yes 

yes 

yes 

no 

yes 

yes 

yes 

no 

yes 

no 

no 

yes 

no 

no 

yes 

no 

yes 

yes 

yes 

yes 

16 

Cost of 
3.3 
designs 
(EUR) 

1187.93 

566.25 

846.30 

829.60 

1004.74 

1944.38 

1086.19 

1052.10 

656.13 

1406.35 

1366.24 

1039.85 

511.73 

970.73 

411.30 

963.30 

811.88 

700.90 

433.75 

1032.54 

372.33 

544.42 

1437.19 

961.73 

937.91 

RCD fee more attractive for 
application with  
3.3 designs 

Current 
€752.5 

Opt. 3.1 
€537.5 

Opt. 3.2 
€480 

yes 

no 

yes 

yes 

yes 

yes 

yes* 

yes* 

yes* 

yes 

yes 

yes 

yes 

yes 

no 

yes 

yes 

yes 

no 

yes 

no 

yes 

yes 

no 

no 

yes 

no 

no 

yes 

yes 

yes 

19 

yes 

yes 

yes 

yes 

yes 

yes 

yes 

yes 

yes 

no 

yes 

no 

yes 

yes 

yes 

no 

yes 

no 

yes 

yes 

yes 

yes 

23 

yes 

yes 

yes 

yes 

yes 

yes 

yes 

yes 

yes 

yes 

yes 

no 

yes 

yes 

yes 

no 

yes 

no 

yes 

yes 

yes 

yes 

25 

* Be-NL-LX (BLX) counted as three. 
Source: Own analysis based on EUIPO data 

It  is  important  to  note  that  in  certain  situations  it  may  be  easier  to  protect  designs  in 
several countries through the Hague system (WIPO) which allows securing protection in 
several countries with a single application188. 

188 International design applications are subject to the payment of three types of fees, all payable in Swiss 
francs: a) a basic fee (397 Swiss francs for one design; 19 Swiss francs for each additional design included 
in the same application); b) a publication fee (17 Swiss francs for each reproduction; 150 Swiss francs for 
each  page  on  which  one  or  more  reproductions  are  shown);  and  c)  a  standard  designation  fee  or  an 
individual  designation  fee  for  each  contracting  party  where  protection  is  sought.  Note:  For  standard 
designation  fees,  a  three-level  structure  applies,  reflecting  the  level  of  examination  carried  out  by  the 
contracting party. See WIPO fees here: https://www.wipo.int/hague/en/. 

104 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
9.9 Impact of abolition of unity of class requirement (Option 2) 

The  current  RCD  system  allows  for  multiple  applications  only  when  designs  belong  to 
the  same  Locarno  class.  As  explained  in  the  problem  definition  section,  this  leads  to 
splitting applications that would otherwise go together. 

As  requested  by  the  Commission,  the  EUIPO  analysed  2020  applications.  The 
assumption was that all applications filed within a two-month window of each other by 
the same owner could be grouped as one application. The length of the window selected 
was based on the analysis of filings in different classes by the same filers.  

The  finding  was  that  in  2020  around  2400  owners  filed  on  average  three  applications 
instead of just one. Their filings were responsible for 22% of all applications in 2020. 

If the unity of class requirement is lifted, the number of applications is expected to drop 
by  14%  as  owners  would  be  able  to  apply  only  once,  while  the  number  of  designs 
protected is not affected. The savings per owner/application are as follows: 

Table A.9.14. Savings from abolition of unity of class requirement 

Saving per owner (application) (EUR) 

Current  
492 

Opt. 3.1 
234 

Opt. 3.2 
281 

Year 2024 impact 

Applications affected  
Total savings (EUR million) 
* Estimation 
Source: Own calculations based on EUIPO data 

2746 (7.7% of all applications) 
0.64 

1.35 

0.77 

The abolition applied to the current fee system would bring benefits of around EUR 492 
to the affected owners. These savings would reach almost EUR 234 in case the Opt. 3.1 
fee system is introduced and EUR 281 in case Opt. 3.2 fees apply.189 

The  impact  in  2024  –  the  first  year  when  changes  are  expected  to  occur  -  ranges  from 
EUR 1.35m in case the current system remains, to EUR 0.64m in case Opt. 3.1 is chosen 
and EUR 0.77 in case of Opt. 3.2. 

9.10 Impact of simplification in requirements for the representation of designs 

(Option 2) 

An EUIPO analysis based on 2019 applications found that 26% of applications had some 
deficiencies (e.g. being incomplete, not properly signed, not paid in full). Around half of 
those  deficiencies  (and  14%  of  all  applications)  related  to  issues  connected  with  the 
representation of designs that Option 2 is intended to fix. These issues were: 

189 Savings were calculated by comparing the fees paid under the current, Opt 3.1 and 3.2 fee regimes for 
multiple applications with the unity of class requirement with the fees that would have been paid under the 
respective  fee  regimes  for  one  application  only  in  case  the  unity  of  class  requirement  is  abolished.  The 
savings were calculated for each of around 2400 owners and the average is presented.  
Due to data structure (information on the number of designs and the number of applications per owner), to 
calculate  fees  paid  under  Opt.  3.1  and  3.2  with  the  unity  of  class  requirement  the  average  number  of 
designs per application for each owner was used. 

105 

 
 
 
 
 
 
 
                                                           
Table A.9.15. Deficiencies in applications for RCD 

Deficiency 
The views do not relate to the same design 
Contains graphical elements which are not part of the design 
Neutral background 
Mixture of views in colour and B/W 
Graphic reproduction may contain only one view 
Bad representation quality 
Deficient representation of the design 
Views change the representation of design 
Total 

Source: EUIPO  

% of applications 2019 
4.9% 
4.7% 
2.2% 
0.9% 
0.7% 
0.5% 
0.3% 
0.03% 
14.3% 

EUIPO  experts  judged  that  fixing  the  above  deficiencies  requires  around  two  hours  of 
work  of  a  lawyer.  Moreover,  after  analysing  the  Commission  proposal  they  concluded 
that the presented options could reduce deficiencies by about half. Further assumption is 
that 80% of the applicants use legal help and hourly cost of a lawyer is around EUR 200 
to 250190. 

Based on the above average cost of correcting the deficiency affected by the Commission 
proposal is estimated at EUR160-200 per application concerned. 

 Table A.9.16 Savings from simplification in requirements for the representation of designs 

Saving per owner (application) (EUR) 
Applications affected 

Year 2024 impact 

Applications affected  
Total savings (EUR million) 
* Estimation 
Source: Own calculations based on EUIPO data 

160 to 200 
14.3% 

5,112 
0.82 to 1.02 

The simplification is expected to affect 14.3% of applications, so around 5000 in 2024. 
The  total  expected  savings  in  that  year  amount  to  between  EUR0.82  and  EUR1.02 
million. 

9.11 Summary of impacts of Options 2 and 3 

The table below summarizes total and per application impacts of simplification measures 
brought  by  policy  options  2  and  3  in  2024  -  the  first  year  of  the  new  fee  structure.  In 
subsequent years the impacts will depend on the number of applications and renewals. 

Table A.9.17.  Overview of maximum expected impact of options 2 and 3 in year 2024* per application 

Fee structure: 

Current 

Option 3.1 

Option 3.2 

No of 
applications 

per 
application 
(EUR) 

Total  
(EUR 
million) 

per 
application 
(EUR) 

Total  
(EUR 
million) 

per 
application 
(EUR) 

Total  
(EUR 
million) 

190 This is a quite conservative assumption. Already in studies from 2005 and 2009 an hourly fee of patent 
attorney  was estimated at  EUR 250 (e.g. Bruno van Pottelsberghe  de  la Potterie, Malwina Mejer (2009). 
The London Agreement and the cost of patenting in Europe, page 235; or Roland Berger. (2005). The cost 
of the sample European patent – new estimates.).  

106 

 
 
 
                                                           
-142 
-71 
72 
468 
1,374 
1,043 
-684 

0 
0 
0 
0 
0 
1,043 
-684 

35,698 
14,988 
7,689 
3,289 
1,708 
173 
914 

0 
0 
0 
0 
0 
0.18 
-0.6252 

-5.1 
-1.1 
0.6 
1.5 
2.3 
0.18 
-0.6252 

Application fee reduction 
1st Renewal fee reduction 
2nd Renewal fee increase 
3rd renewal fee increase 
4th renewal fee increase** 
Cap at 50 
No transfer fee 
abolition of unity of class 
requirement 
simplification in 
requirements for the 
representation of designs 
Total 
Total without 4th renewal 
*  The  first  full  year  of  functioning  of  the  reform,  impact  in  following  years  depends  on  the  number  of 
applications and renewals; 
** Based on assumption only, there is no experience yet with 4th renewal 
Source: Own assessment  

-203 
-36 
144 
612 
1,663 
1,043 
-684 

-2.82 
-2.82 

-3.91 
-6.21 

2,746 

5,112 

-1.35 

-1.02 

-0.64 

-1.02 

-492 

-200 

-234 

-200 

-281 

-200 

-7.2 
-0.5 
1.1 
2 
2.8 
0.18 
-0.6252 

-0.77 

-1.02 

-4.04 
-6.84 

As one owner can make several applications, the below table shows an approximation of 
the  number  of  owners  affected.  It  is  based  on  the  average  number  of  applications  per 
owner which amounted to 2.44 in 2019-2020. 

Table A.9.18.  Overview of maximum expected impact of options 2 and 3 in year 2024* per owner 

Fee structure: 

Current 

Option 3.1 

Option 3.2 

No of 
owners 
14,659 
6,155 
3,157 
1,351 
701 
71 
375 

Total  
(EUR 
million) 
0.00 
0.00 
0.00 
0.00 
0.00 
0.18 
-0.63 

per 
application 
(EUR) 
0 
0 
0 
0 
0 
2,540 
-1,665 

per 
application 
(EUR) 
-345.79 
-172.90 
175.33 
1,139.66 
3,345.93 
2,539.88 
-1,665.18 

Total  
(EUR 
million) 
-5.10 
-1.10 
0.60 
1.50 
2.30 
0.18 
-0.63 

per 
application 
(EUR) 
-494.34 
-87.67 
350.66 
1,490.33 
4,049.69 
2,539.88 
-1,665.18 

Application fee reduction 
1st Renewal fee reduction 
2nd Renewal fee increase 
3rd renewal fee increase 
4th renewal fee increase** 
Cap at 50 
No transfer fee 
abolition of unity of class 
requirement 
simplification in 
requirements for the 
representation of designs 
Total 
Total without 4th renewal 
*  The  first  full  year  of  functioning  of  the  reform,  impact  in  following  years  depends  on  the  number  of 
applications and renewals;  
** Based on assumption only, there is no experience yet with 4th renewal 
Source: Own assessment  

-2.82 
-2.82 

-3.91 
-6.21 

-234.00 

-281.00 

-487.03 

-487.03 

2,099 

2,746 

-1.35 

-1.02 

-0.64 

-1.02 

-492 

-487 

Total  
(EUR 
million) 
-7.20 
-0.50 
1.10 
2.00 
2.80 
0.18 
-0.63 

-0.77 

-1.02 

-4.04 
-6.84 

107 

 
 
  
  
  
  
  
  
  
  
 
 
  
  
  
  
  
  
  
  
 
 
 
ANNEX 10: DEFINITION OF SUBJECT MATTER OF PROTECTION  

According  to  the  definitions  provided  in  Article  3  CDR  and  Article  1  DDir,  a  design 
refers to the appearance of a product resulting from certain features. A product is to be 
understood  as  any  industrial  or  handicraft  item.  The  Legal  Study  pointed  to  certain 
confusion in  relation  to  the definition of the subject matter of protection, involving the 
potential  of  negatively  influencing  the  accessibility  of  the  design  protection  systems191. 
In  view  of  the  growing  role  of  digital  designs,  several  respondents  to  the  First  Public 
Consultation  for  the  evaluation  saw  need  for  making  the  definitions  future-proof  by 
clarifying that virtual designs, animated designs, icons and graphical user interfaces are 
covered by those definitions. The issue of digital designs raises the question whether they 
can be understood as products and also whether their elements are covered by the design 
notion (e.g. is animation a feature?). 

to,  amongst  others, 

Also collaboration of the EUIPO and national IP offices showed that, for various types of 
designs,  the  subject  matter  of  protection  is  either  not  clear  or  interpreted  differently  in 
different Member States. Divergent practices were noted for designs consisting of more 
than  one  item  (a  set  of  articles)  and  designs  relating  to  ‘get  up’  within  the  notion  of 
product. According to the Locarno Classification (Class 32-00), the latter term “get up” is 
defined  as  referring 
interiors”, 
“arrangement of window displays” or “arrangement of restaurant interiors”. However, in 
common  parlance  the  term  “get-up”  is  also  used  to  denote  the  form  in  which  a  brand 
owner presents its product overall, in particular the entire product packaging appearance. 
This  double  meaning  is  the  reason  for  diverging  practices.  Different  approaches  at 
national  level  were  also  observed  as  regards  the  availability  of  design  protection  for 
interior design (e.g. can the interior of a shop be protected as a design?). Discussions held 
in  liaison  meetings in  2008, 2009 and 2010 showed that some Member States consider 
interior design as a kind of get up. 

the  “arrangement  of  shop 

Proposed solution: Update and clarification of the current design and product notions to 
make eligibility of protection for the various design types more explicit and transparent.  

191 Legal Rview, p. 12 and pp. 57-60. 

108 

 
 
 
 
 
 
 
                                                           
ANNEX 11: RELATIONSHIP TO COPYRIGHT PROTECTION 

Legal context 

Both the DDir and the CDR address the issue of the relationship between copyright and 
design protection.  

Shortcoming 

Both the DDir and the CDR address the issue of the relationship between copyright and 
design  protection.192  The  current  regime  leaves  a  margin  of  manoeuvre  to  Member 
States193 concerning the relationship between designs and copyright. Each Member State 
can  determine  the  extent  of  copyright  protection,  and  the  conditions  under  which  such 
protection can be conferred. As a result, whether a protected design can receive copyright 
protection  may  vary  over  time  and  from  one  Member  State  to  another.  This  has  led  to 
divergent  legal  practices  in  the  Member  States.  Some  Member  States  allow  the 
cumulation  of  design  and  copyright  protection,  whereas  others  do  not  allow  full 
cumulation or have a willingness to demarcate copyright and design protection by using 
various  legal  tools  and  to  lift  competition  barriers  through  preventing  that  copyright 
encroaches on applied arts, especially as regards the functional aspects of an object.  

The divergent legal practices (e.g. principle of separability, theory of tiers, unity of art, 
different  interpretation  of  the  criteria  of  originality)  cause  legal  uncertainty  and  are  a 
source of confusion for the users. The legal uncertainty concerns the term of protection194 
and  the  scope  of  protection195,  including  the  geographical  scope  of  protection.  As  a 
result,  it  may  happen  under  the  current  law  that  a  product  can  no  longer  be  protected 
under  design  law  in  a  Member  State  but  still  receive  copyright  protection  in  another 
Member States. This can affect the free circulation of products in the single market: for 

192 Article 17 of the DDir:  “A design protected by a design right registered in or in respect of a Member 
State in accordance with this Directive shall also be eligible for protection under the law of copyright of 
that State as from the date on which the design was created or fixed in any form. The extent to which, and 
the conditions under which, such a protection is conferred, including the level of originality required, shall 
be determined by each Member State”. 
Recital  8  of  the  DDir:  “Whereas,  in  the  absence  of  harmonisation  of  copyright  law,  it  is  important  to 
establish  the  principle  of  cumulation  of  protection  under  specific  registered  design  protection  law  and 
under copyright law, whilst leaving Member States free to establish the extent of copyright protection and 
the conditions under which such protection is conferred”. 
Article 96(2) of the CDR: “A design protected by a Community design shall also be eligible for protection 
under the law of copyright of Member States as from the date on which the design was created or fixed in 
any form. The extent to which, and the conditions under which, such a protection is conferred, including 
the level of originality required, shall be determined by each Member State”. 
Recital 32 of the CDR: “In the absence of the complete harmonisation of copyright law, it is important to 
establish the principle of cumulation of protection under the Community design and under copyright law, 
whilst leaving Member States free to establish the extent of copyright protection and the conditions under 
which such protection is conferred.” 
193  As  stated  above,  each  Member  State  can  determine  the  extent  of  copyright  protection,  and  the 
conditions under which such protection can be conferred. 
194  More  than  70  years  for  copyright-protected  products  against  up  to  25  years  for  design-protected 
products. The term of copyright protection is 70 years after the death of the author. (Directive 2006/116 on 
on  the  term  of  protection  of  copyright  and  certain  related  rights)  https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32006L0116&from=EN.  
195 The scope of the rights are not the same in copyright and in design law.  

109 

 
 
 
                                                           
instance,  a  bike  could  be  freely  copied  and  distributed  in  Belgium,  but  would  still  be 
protected in France due to the different legal practices.  

The results of the public consultation  held  between 29 April and 22 July 2021 confirm 
that  stakeholders  believe  that  the  most  relevant  problem  to  solve  is  the  divergence  in 
Member  States’  legal  practices.  As  regards  the  question  whether  or  not  there  is  an 
overlap  between  copyright  and  design  protection,  which  make  the  choice  difficult, 
stakeholders’  views  were  diverging,  but  more  stakeholders  considers  that  the  overlap 
does not make the choice difficult. 

Almost  2/3  of  the  stakeholders  do  not  consider  the  concern  serious  that  potential  right 
holders opt for copyright protection instead of design protection, to such a degree that the 
design  regime  runs  void.  They  do  not  consider  the  concern  serious  either  that  the 
conditions  for  granting  copyright  protection  in  addition  to  design  protection  leads  to 
overreach of protection and distortion of competition.  

However,  almost  2/3  of  the  stakeholders  consider  that  there  should  be  changes  to  the 
current  rules  in  the  EU  on  the  relationship  between  design  and  copyright  protection  in 
order to remove the margin of discretion for Member States to determine conditions for 
copyright protection. Stakeholders consider that the removal of the margin of discretion 
for Member States  is  necessary due to  the recent CJEU case law, which clarified some 
key aspects of the copyright and design interface, creating sufficient clarity for Member 
States to harmonise their legal practices.  

Although this margin of manoeuvre for Member States appeared justified at the time of 
the adoption of the Directive and the Regulation in the 1990s, this  does not seem to be  
longer  the  case.  EU  copyright  law,  including  the  notions  of  work  and  originality,  has 
been  extensively  harmonised.  The  harmonisation  started  with  the  enactment  of  the 
Infosoc Directive (2001/29/EC) and the prohibition therein of reproduction of the works 
of  authors,  and  continued  through  the  evolution  of  the  CJEU  case  law196.  The  CJEU 
found  that  the  ‘notion  of  work’  is  an  autonomous  concept  of  EU  law  that  needs  to  be 
interpreted and applied uniformly and this puts into question indeed whether the margin 
of manoeuvre currently left to the Member States remains justified.  

The judgements in the cases Flos197, Cofemel198, and Brompton199 also helped clarify the 
relationship  between  copyright  and  design  law  through  further  clarifying  the  notion  of 
work.  

196  The  case  law  (starting  with  CJEU  Case  C-302/10  Infopaq)  found  that  a  work  eligible  for  copyright 
protection has to be an author’s individual creation, resulting from free creative choices and reflecting the 
personality  of  the  author.  Furthermore,  the  case  law  also  established  that  no  protection  applies  when  the 
object is dictated solely by technical considerations, rules or constraints, which leave no room for creative 
freedom and the subject matter is to be expressed in a manner, which makes it identifiable with sufficient 
precision and objectivity. It was unclear for some time whether those criteria also determine protection to 
be granted to works of applied art.  
197 Judgment of the Court, 27.1.2011, Flos, C-168/09, ECLI:EU:C:2011:29.  
198 Judgment of the Court, 12.9.2019, Cofemel, C-683/17, ECLI:EU:C:2019:721. 
199 Judgment of the Court, 11.6.2020, Brompton Bicycle, C-833/18, ECLI:EU:C:2020:461.  

110 

 
 
 
 
 
 
 
                                                           
In its Flos decision, the CJEU clarified that Member States cannot exclude, not even for a 
certain  period,  copyright  protection  for  designs.  This  decision  has  triggered  changes  in 
some national law or case law, widening the copyright protection for works of applied art 
and the possible overlap with design law.  

In its recent Cofemel decision, the CJEU decided that cumulative application of copyright 
and design protection can be envisaged only in certain situations (i.e. no total cumulation 
is possible), with this limiting the possible overlap. The CJEU highlighted the differences 
between  copyright  and  design  law,  emphasising  that  design  law  aims  at  protecting 
“subject  matter  which,  while  being  new  and  distinctive,  is  functional  and  liable  to  be 
mass-produced”.  The  term  of  protection  is  therefore  limited,  but  sufficient  period  to 
ensure  a  return  on  the  investment  in  creating  designs  without  excessively  restricting 
competition.  While  copyright  protection  is  reserved  to  subject  matters  that  merit  being 
classified  as  works  and  the  duration  of  works  is  significantly  longer.  In  contrast,  the 
purpose of copyright law, from an economic perspective, is not to prevent restriction of 
competition but rather to facilitate the economic exploitation of the work, which justifies 
its  longer  term  of  protection.  The  CJEU  stressed  that  copyright  protection  on  a  design 
cannot  lead  to  that  the  respective  objective  or  effectiveness  of  the  two  regimes  are 
undermined. Building on the respective objective and rules of design and copyright law, 
the  CJEU  concluded  that  cumulative  protection  may  only  “be  envisaged  in  certain 
situations”  (Point  52)  and  the  decision  identified  certain  situations  in  which  the 
cumulative  protection  may  not  apply.  The  CJEU  precludes  national  legislation  from 
conferring  copyright  protection  to  designs  purely  on  the  ground  that,  “over  and  above 
their practical purpose, they generate a specific, aesthetically significant visual effect”. 
This follows from the reasoning that the aesthetic effect is the result of an “intrinsically 
subjective sensation of beauty experienced by each individual” and thus it does not equal 
to originality, which is one of the two preconditions to qualify for copyright protection. 
In the end, the criterion of the author’s “own intellectual creation reflecting its freedom 
of choice and personality” remains the criterion for originality to be taken into account.  

In its recent Brompton decision, the CJEU concluded that the shape of a product which is 
is solely dictated by its technical function cannot be covered by copyright protection and 
it  is  for  the  courts  to  decide  whether  the  author,  through  choice  of  the  shape  has 
expressed his creative ability in an original manner by making free and creative choices 
and has designed the product in such a way that it reflects his personality200. 

Proposed solution  

Due to the above recent developments in the CJEU case law, the current provisions are 
proposed to be maintained except for the margin of manoeuvre left to Member States as 
regards  the  conditions  under  which  copyright  protection  can  be  conferred.  This  would 

200  “copyright  protection  applies  to  a  product  whose  shape  is,  at  least  in  part,  necessary  to  obtain  a 
technical  result,  where  that  product  is  an  original  work  resulting  from  intellectual  creation,  in  that, 
through  that  shape,  its  author  expresses  his  creative  ability  in  an  original  manner  by  making  free  and 
creative choices in such a way that that shape reflects his personality, which it is for the national court to 
verify, bearing in mind all the relevant aspects of the dispute in the main proceedings”.  

111 

 
 
 
 
                                                           
 
maintain  the  possibility  to  protect  a  design  under  both  design  law  and  copyright  law. 
However, the margin of discretion left to Member States would be removed. The extent 
to  which,  and  the  conditions  under  which,  copyright  protection  can  be  conferred, 
including the  level  of originality, should have to comply  with  Directive  2001/29/EC  as 
interpreted  by  the  CJEU.  This  would  mean  in  practice  that  Member  States  will  not  be 
able to include in their national law specific conditions (as for instance a higher level of 
originality) to allow copyright protection for design. 

112 

 
 
 
 
ANNEX 12: AWARENESS RAISING ACTIVITIES 

This  annex  presents  the  rationale  for  not  including  the  lack  of  awareness  as  a  problem 
driver in this impact assessment report.  

Awareness  of  intellectual  property  (IP)  rights  is  not  an  issue  particular  to  designs,  but 
rather one cutting across the entire portfolio of IP rights. The Commission started to act 
on  designs  awareness  already  during  the  stage  of  evaluation  of  the  DDir  and  CDR, 
instantly after the problem had been identified. 

In line with proportionality, it was concluded that significant awareness building actions 
could be conducted within the current legal/institutional framework – notably through the 
EUIPO which has it as part of the mandate  as  well as sufficient  resources and, last but 
not least, the relevant experience. 

EUIPO actions include promotion of both trade marks and designs. They include among 
others:  

  User  friendly  websites;  trainings  on  IP  tools;  trainings  for  IP  advisors; 
empowering  SMEs  across  and  beyond  the  EU  to  protect  and  enforce  their 
competitive advantage through IP rights (budget of almost EUR 50m in the 
coming three years); 

  Grants for awareness raising (EUR 0.4m in 2021); Pan European Awareness 
(EUR  0.25m), 

Campaign,  World  Anti-Counterfeiting  Day  2021 
DesignEurope awards 2021 (EUR 0.49m); 

 

In addition, as announced in the EU IP Action plan, the Commission and the 
EUIPO will set up a platform accompanied with a coordination and capacity-
building mechanism, which will be linked to the Your Europe Portal. It will 
be a one-stop-shop access to all relevant information and advice on existing 
intellectual property protection and enforcement services for EU SMEs (e.g. 
formalities,  easy-to-use  filing  systems),  including  also  information  on 
industrial  designs.  The  platform  will  mainstream  the  work  of  national  IP 
offices on IP promotion and awareness activities as well as on the provision 
of IP-related services. It will also direct SMEs to the programmes existing at 
EU level. The tentative launch date is 2022. 

These are relatively new developments and awareness  building is  a long  process  and  it 
will take some time before results are seen. The proposed legal reform (including among 
others  the  renaming  to  “EU  design”  and  introduction  of  a  registration  symbol201),  and 
related  media  communication,  would  put  designs  more  in  the  spotlight  and  assist  in 
raising  awareness  further.  The Commission  should monitor the impact  of all  these new 
actions. 

201 There is currently no commonly accepted symbol,  such as the copyright  notice  © to indicate the  fact 
that a product incorporates a RCD or a registered national design. For marketing purposes, it could prove 
valuable in particular for SMEs and individual designers to have a commonly accepted notice available. In 
response  to  the  Second  Public  Consultation,  72%  of  the  stakeholders  considered  the  introduction  of  a 
commonly recognized registration symbol a suitable means to raise awareness about the EU design system. 

113 

 
 
 
                                                           
ANNEX 13: COEXISTENCE OF NATIONAL AND EU DESIGN PROTECTION 

SYSTEMS 

Coexistence has always been the method to build a single market in Intellectual Property 
(IP), and is in line with the principle of subsidiarity. It has also been politically the most 
operational way forward when it comes to IPR legislation. This model also works well in 
the area of trade marks.  

EU-wide protection did not aim at replacing national laws but to serve as an alternative 
and  complement  in  order  for  businesses  in  the  EU  to  dispose  of  and  freely  choose 
between  or  combine  different,  tailored  tools  to  best  (strategically)  protect  their  IP 
according to individual needs (incl. gradual shift from local to EU level).  

National  designs  provide  a  suitable  geographical  scope  of  protection  when  (local) 
businesses focus on specific markets, in particular their own domestic markets. 

Demand  for  such  national  designs  remains  significant  and  higher  than  the  demand  for 
Community Design protection - around 120 000 filings for designs each year for the past 
decade (see figure below).  

Fig. 1. Filing volumes of national design rights 

 Source: EUIPO based on data provided by the Member States for DesignView 

Coexistence  and  fluid  choice  for  businesses  makes  also  microeconomic  sense.  Designs 
are  exclusive  rights,  whereby  over-protection  should  be  discouraged  in  the  interest  of 
both competitors and consumers. Accordingly, letting the RCD system ‘compete’ head-
on  with  the  national  systems  would  not  be  appropriate.  The  economic  value  of  an 
exclusive  right  covering  the  whole  EU  is  greater  than  that  of  a  right  covering  only  the 
territory of a MS. This needs to be reflected in higher fees for the RCD and national fees 
should be lower.  

The  evaluation  confirmed  high  support  by  stakeholders  for  maintaining  coexistence  in 
the designs area in line with the dual trade mark system. Particularly SMEs choose such 
protection  as  best  suited  to  their  needs,  with  adequate  territorial  coverage  (see  table 
below). 

114 

 - 20,000 40,000 60,000 80,000 100,000 120,000 140,000 160,000199920002001200220032004200520062007200820092010201120122013201420152016201720182019No. of designs  appliaed forNational (EU)Community Design 
 
 
 
Table  13.1.  Evaluation  OPC  -  Q20.  What  are  the  reasons for  registering  your  designs as  national 
designs? (multiple choice; % of answers selected*) 

It is best suited to my needs 
Adequate territorial coverage 
Easy procedures 
Lower fees 
Other** 
Better service quality 
Speed in processing my application 

no. of answers 

SME 
57% 
43% 
43% 
29% 
29% 
14% 
0% 
7 

All respondents 
36% 
44% 
22% 
27% 
47% 
2% 
11% 
45 

*no opinion answers not included 
** possibility to obtain priority documents from national offices, the possibility to combine designs not covering the 
same classes into one application, strategic reasons (e.g. declaration of invalidity is more difficult to obtain at 
national level) and enforcement reasons (Article 82(5) CDR being open to interpretations). Finally, some features of 
the national protection (e.g. possibility to defer publication, presumption of ownership and validity) were also 
mentioned as a reason for opting for national registered designs. 
Source: responses to open public consultations on designs 

Identified  inefficiencies  of  national  systems  will  be  remedied  by  the  proposed 
amendments to the DDir, harmonising in particular procedural rules. 

115 

 
 
 
 
 
ANNEX 14: DICTIONARY  

Applicant:  The  person  or  company  who  applies  for  a  design  registration,  i.e.  files  an 
application, or the person or company on behalf of whom the application for registration 
is made. 

Authorised  spare  parts  distributor:  A  distributor  of  spare  parts  for  motor  vehicles 
operating  within  the  distribution  system  set  up  by  a  supplier  of  motor  vehicles.  The 
concept of authorised distributor includes dealers and/or  repairers that are authorised to 
distribute spare parts.  

Automotive  aftermarket:  This  is  the  auto  industry’s  after-sale  market.  It  includes, 
among others, parts and accessories used in the repair, maintenance or enhancement of a 
product.  

Cancellation  of  a  trade  mark:  Trade  mark  rights  can  be  revoked  (Article  51 
CTMR/Article  12  TMD)  or  be  declared  invalid  (Articles  52,  53  CTMR/Articles  3,  4 
TMD).  ‘Cancellation’  refers  to  both  types  of  proceedings.  A  registered  trade  mark  can 
inter  alia  be  revoked  in  the  absence  of  genuine  use.  Furthermore,  it  may  be  declared 
invalid  on  application  to  the  Office  where  it  has  been  registered  contrary  to  absolute 
(including acting in bad faith when filing the application) or relative grounds for refusal. 
OHIM  has  exclusive  jurisdiction  with  regard  to  direct  revocation  or  invalidity 
applications. Courts in Member States of the European Union, however, may revoke or 
declare a CTM invalid when the issue is put to them as a counterclaim in an infringement 
action based on the CTM. 

Complex  product:  Pursuant  to  Article  3  of  the  CDR  and  Article  1  of  the  DDir,  a 
complex product means a product which is composed of multiple components which can 
be replaced permitting disassembly and re-assembly of the product. 

Date  of  priority  for  designs:  The  right  of  priority  was  introduced  by  Article  3  of  the 
Paris Convention for the Protection of Industrial Property, pursuant to which any person 
who has duly filed an application for an industrial design in one of the countries of the 
Paris Union enjoys for the purpose of filing in the other countries, a right of priority for a 
certain period defined in the Convention. Pursuant to Article 43 of the CDR, the effect of 
the  priority  right  is  that  the  date  of  priority  counts  as  the  date  of  the  filing  of  the 
application  for  a  registered  Community  design.  If  the  design  holder  has  applied  for 
registration of the design in another country within the previous six months, he is granted 
a right of priority when applying for a new registration. That means that the date of the 
first application also applies to the new one. The concept of the priority right and priority 
date is also used by the EU Member States.  

Deferment  of  publication:  Pursuant  to  Article  50(1)  of  the  CDR,  the  applicant  for  a 
registered  Community  design  may  request,  when  filing  the  application,  that  the 
publication  of  the  registered  Community  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. 
Pursuant to Article 50(2), the registered Community design is registered, but neither the 
representation  of  the  design  nor  any  file  relating  to  the  application  is  open  to  public 
inspection.  Pursuant  to  Recital  26  CDR,  the  option  of  deferring  the  publication  serves 

116 

 
 
avoiding  that  the  normal  publication  following  registration  of  a  design  could  in  some 
cases destroy or jeopardise the success of a commercial operation involving a design. 

Design: Pursuant to Article 3 of the CDR and Article 1 of the DDir, a design means the 
appearance  of  the  whole  or  a  part  of  a  product  resulting  from  the  features  of,  in 
particular,  the  lines,  contours,  colours,  shape,  texture  and/or  materials  of  the  product 
itself and/or its ornamentation. 

Design  application:  Entrepreneurs  can  file  an  application  for  design  registration  at  the 
European Union Intellectual Property Office or before the national intellectual property 
offices. There are two ways of applying for registration of a Community design, that is, 
(i) either via a direct filing, with the EUIPO or with the central industrial property office 
of  a  Member  State  or,  in  Benelux  countries,  with  the  Benelux  Office  for  Intellectual 
Property  (Article 35  et  seq.  CDR)  or  (ii)  via  an  international  registration  filed  with  the 
International Bureau of the World Intellectual Property Organization and designating the 
European Union (Article 106a et seq. CDR).  

Design holder:  The owner of a registered or unregistered design. This  is the person or 
company in whose name the registration is listed in the Designs Register. A registration 
may have several owners. 

Design  registration:  European  Union  Intellectual  Property  Office  registers  a  design  in 
the  EU’s  Designs  Register  if  the  application  meets  the  formal  requirements.  National 
intellectual  property  offices  can  also  register  a  design  in  their  national  design  register. 
Design registration is the formal procedure through which a new design is entered in the 
EU’s Design Register or the national design register. The registration of a design has the 
effect of securing its proprietor the exclusive right in the EU or in the respective Member 
States to use it for the goods and/or services that it covers and to prevent third parties to 
use, without consent,  the same or a similar design for identical  or similar goods and/or 
services as those protected by his design.  

Design  renewal:  Pursuant  to  Article  10  of  the  DDir  and  Article  12-13  of  the  CDR,  a 
design registration is valid for five years and it can be extended by five-year periods, up 
to a maximum of 25 years at the request of the design holder or of any person expressly 
authorised by him, provided that the renewal fee has been paid.  

Earlier design: A design which was entitled to exclusive rights based on a Community 
design, a national design or an international design prior to the filing date or the date of 
priority of the design application. 

European Union Intellectual Property Network:  it is network that brings together the 
national  and  regional  IP  offices  of  the  EU,  the  EUIPO,  international  partners,  and 
customers of the EUIPO to build a stronger IP network in the EU. 

Fee: Legal term for a fee charged by the EUIPO with respect to an application to register 
a design, the renewal or modification of a registration. The amount of the fee is legally 
provided  for  in  the  Fee  Regulation  (EC)  No  2246/2002. National  intellectual  property 
offices  have  their  own  fee  regime  for  the  registration,  renewal  or  modification  of  a 
registration.  

117 

 
 
Filing date:  The date of filing of an application for a registered Community design is the 
date on which documents containing the information specified in Article 36(1) of CDR 
are filed with the EUIPO by the applicant, or, if the application has been filed with the 
central industrial property office of a Member State or with the Benelux Design Office, 
with that office. The filing date for a national design is the date on which a design right is 
applied for and on which the application meets the statutory application requirements.  

Genuine use requirement: Pursuant to Article 18 of the EUTMR, and Article 16 of the 
TMD, within a period of five years following registration, the proprietor of a trade mark 
has not put the trade mark to genuine use in the EU (if EU trade mark) or in the Member 
State (national trade mark) in connection with the goods or services in respect of which it 
is registered. Otherwise the trade mark proprietor may not invoke his rights against third 
parties and third parties may initiate the revocation of the trade mark. 

Graphical  user  interfaces:  A  graphical  user  interface  is  a  way  to  communicate 
instructions to a computer application or operating system without typing the instructions 
in. It consists of picture-like items (icons and arrows for example). 

Icon design: In computing, an icon is a pictogram or ideogram displayed on a computer 
screen in order to help the user navigate a computer system.  

Independent aftermarket (IAM) spare parts distributor: A distributor of spare parts 
for  motor  vehicles  who  has  no  affiliation  with  the  motor  vehicle  manufacturer  (VM), 
regardless of any affiliation with spare parts manufacturers.  

Independent aftermarket (IAM) repairers: Independent repairers that operate as self-
standing businesses.  

Independent  suppliers  (non-OES):  Manufacturers  that  do  not  have  any  business 
connection  with  original  equipment  manufacturers  (OEMs).  They  produce  spare  parts 
based  on  reverse  engineering  only  for  the  aftermarket.  They  sell  their  products  under 
their own brand.  

Invalidation  of  the  design:  A  design  is  removed  from  the  register  either  due  to  the 
voluntary withdrawal by the owner or due to a court order or an administrative decision 
taken by the intellectual property office. The grounds under which a Community design 
can be declared invalid  are laid  down in  Article 25 of the CDR  and the grounds under 
which a national design can be declared invalid is laid down in Article 11 of DDir.  

Locarno  Classification:  The  Locarno  Classification,  established  by  the  Locarno 
Agreement  in  1968,  is  an  international  classification  used  for  the  purposes  of  the 
registration  of  industrial  designs.  It  includes  a  list  of  classes  and  subclasses,  an 
alphabetical list of goods which constitute an industrial design, with an indication of the 
classes and subclasses into which they fall and explanatory notes.   

Must-match spare part: The appearance of such parts is dependent on the appearance of 
the  complex  product  to  be  repaired  so  that  the  exact  reproduction  is  necessary  for 
restoring the complex product’s original appearance. Such parts must exactly match the 
specifications of the original part to be able to replace it in the context of repair.  

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Multiple  application:  A  multiple  application  is  a  request  for  the  registration  of  more 
than one design within the same application. Each of the designs contained in a multiple 
application  or  registration  is  examined  and  dealt  with  separately.  In  particular,  each 
design may, separately, 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 (Article 37(4) CDR). 

OEM authorised repairers: Repairers that are owned by the car manufacturers or that 
belong to the contractual service partners of car manufacturers.  

Original equipment manufacturer (OEM): A manufacturer of motor vehicles. Original 
equipment  supplier  (OES)  A  part(s)  manufacturer  that  produces  parts  or  equipment 
according to  the specifications and production standards provided by the motor vehicle 
manufacturer (VM) for the production of components or equipment for the assembly of 
the  motor  vehicle  in  question.  OEMs  use  these  parts  for  vehicle  assembly  and  for 
redistribution as spare parts in the aftermarket.  

Prior  use:  Pursuant  to  Article  22  of  the  CDR,  a  right  of  prior  use  exists  for  any  third 
person who can establish that before the date of filing of the application, or, if a priority 
is claimed, before the date of priority, he has in good faith started using within the EU, or 
has made serious and effective preparations to that end, of a design included within the 
scope of protection of a registered Community design, which has not been copied from 
the  latter.  The  right  of  prior  use  entitles  the  third  person  to  exploit  the  design  for  the 
purposes  for  which  its  use  had  been  effected,  or  for  which  serious  and  effective 
preparations  had  been  made,  before  the  filing  or  priority  date  of  the  registered 
Community design. 

Product: Pursuant to Article 3 of the CDR and Article 1 of the DDir, a product means 
any industrial or handicraft item, including inter alia parts intended to be assembled into 
a  complex  product,  packaging,  get-up,  graphic  symbols  and  typographic  typefaces,  but 
excluding computer programs. 

Publication  of  a  design:  If  a  design  meets  the  formal  requirements,  the  EUIPO  or  a 
national intellectual property office publishes the design registration in the EU’s Designs 
Register or in the case of national design, in the national design register. The publication 
date  of  a  design  is  important  because  this  is  the  date  from  which  the  design  can  be 
viewed by all in the public register. Pursuant to Article 49 of the CDR, the EUIPO has to 
publish  the  registered  Community  design  in  the  Community  Designs  Bulletin.  The 
contents of the publication shall be set out in the implementing regulation. 

Representation  of  a  design:  Pursuant  to  Article  4  of  the  Community  Design 
Implementing  Regulation,  the  representation  of  the  design  consists  in  a  graphic  or 
photographic reproduction of the design, either in black and white or in colour.  

The  Hague  Agreement:  An 
the 
international registration of designs. An applicant can obtain design protection in various 
countries  that  are  parties  to  the  Hague  Agreement  under  a  single  application. 
International  design  registrations  are  administered  by  the  World  Intellectual  Property 
Organisation.  

international  agreement,  which  provides  for 

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Unitary  protection:  Pursuant  to  Article  3(1)  of  the  CDR,  a  community  design  has  to 
have  a  unitary  character.  The  essence  of  a  Community  Design  is  that  it  is  a  uniform 
protection and that it has effect throughout the entire territory of the EU. A Community 
Design  can  only  be  registered,  surrendered,  transferred,  revoked,  or  invalidated  for  the 
entire territory of the EU.  

Unregistered  Community  Design:  A  Community  design  that  is  not  registered.  An 
Unregistered Community Design is protected for a period of three years as from the date 
on which the design was first made available to the public within the EU. Compared to 
the registered design right it confers less right on its holder, it constitutes a right only to 
prevent copying.  

Visible spare parts: These are parts of a motor vehicle that are used for the purpose of 
repair  so  as  to  restore  its  original  appearance.  Within  the  automotive  aftermarket,  the 
following three spare parts segments are concerned: body parts, lighting and auto glass.  

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