Source: EURLEX
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# 51997AP0319(01)

**Decision on the common position adopted by the Council with a view to adopting a European Parliament and Council Directive on the legal protection of designs (C4-0296/97 00/ 0464(COD))** 
  
*Official Journal C 339 , 10/11/1997 P. 0052*

  

A4-0319/97

Decision on the common position adopted by the Council with a view to adopting a European Parliament and Council Directive on the legal protection of designs (C4-0296/97 - 00/0464(COD))

(Codecision procedure: second reading)

The European Parliament,

- having regard to the common position of the Council, C4-0296/97 - 00/0464(COD)),

- having regard to its opinion at first reading ((OJ C 287, 30.10.1995, p. 157.)) on the Commission proposal to Parliament and the Council, COM(93)0344 ((OJ C 345, 23.12.1993, p. 14.)),

- having regard to the amended Commission proposal, COM(96)0066 ((OJ C 142, 14.5.1996, p. 7.)),

- having regard to Article 189b(2) of the EC Treaty,

- having regard to Rule 72 of its Rules of Procedure,

- having regard to the recommendation for second reading of the Committee on Legal Affairs and Citizens' Rights (A4-0319/97),

1. Amends the common position as follows;

2. Calls on the Commission to support Parliament's amendments in the opinion it is required to deliver pursuant to Article 189b(2)(d) of the EC Treaty;

3. Calls on the Council to approve all Parliament's amendments, amend its common position accordingly and definitively adopt the act;

4. Instructs its President to forward this decision to the Council and Commission.

(Amendment 2)

Recital 13

>Original text>

13. Whereas the assessment as to whether a design has individual character should be based on whether the overall impression produced on an informed user viewing the design clearly differs from the existing design corpus, taking into consideration the nature of the product to which the design is applied or in which it is incorporated, and in particular the industrial sector to which it belongs and the degree of freedom of the designer in developing the design;

>Text following EP vote>

13. Whereas the assessment as to whether a design has individual character should be based on whether the overall impression produced on an informed user viewing the design differs from that produced on him by the existing design corpus, taking into consideration the nature of the product to which the design is applied or in which it is incorporated, and in particular the industrial sector to which it belongs and the degree of freedom of the designer in developing the design;

(Amendment 3)

Article 3(3)(a)

>Original text>

(a) if the component part, notwithstanding its having been incorporated into the complex product, could reasonably be expected to remain visible during normal use of the latter, and

>Text following EP vote>

(a) if the component part, once it has been incorporated into the complex product, remains visible during normal use of the latter, and

(Amendment 4)

Article 3(4)

>Original text>

4. 'Normal use¨ within the meaning of paragraph (3)(a) shall mean any use other than maintenance, servicing or repair.

>Text following EP vote>

4. 'Normal use¨ within the meaning of paragraph 3(a) shall mean use by the end user, excluding maintenance, servicing or repair work.

(Amendment 5)

Article 6(3)

>Original text>

3. Paragraph 2 shall also apply if the design has been made available to the public as a consequence of an abuse in relation to the designer or his successor in title.

>Text following EP vote>

3. Paragraph 2 shall also apply if the design has been made available to the public as a consequence of an abuse in relation to the designer or his successor in title, unless this abuse has given rise to a registered Community design or a design right registered in the relevant Member State.

(Amendment 6)

Article 7(2)

>Original text>

2. A design right shall not subsist in features of appearance of a product which must necessarily be reproduced in their exact form and dimensions in order to permit the product in which the design is incorporated or to which it is applied to be mechanically connected to or placed in, around or against another product so that either product may perform its function.

>Text following EP vote>

2. A design right shall not subsist in features of appearance of a product which must be reproduced in order to permit the product in which the design is incorporated or to which it is applied to be mechanically connected to or placed in, around or against another product so that either product may perform its function.

(Amendment 7)

Article 10

>Original text>

Upon registration, a design which meets the requirements of Article 3(2) shall be protected by a design right for one or more periods of five years from the date of filing of the application. The term of protection may be renewed at the request of the right holder for one or more periods of five years each, up to a total term of 25 years from the date of filing.

>Text following EP vote>

Upon registration, a design which meets the requirements of Article 3(2) shall be protected by a design right for one or more periods of five years from the date of filing of the application. The right holder may renew the term of protection for one or more periods of five years each, up to a total term of 25 years from the date of filing.

(Amendment 9)

Article 13(2), introduction

>Original text>

2. In addition, the rights conferred by a design right upon registration shall not extend to:

>Text following EP vote>

2. The rights conferred by a design right upon registration shall not be exercised in respect of:

(Amendment 10)

Article 14

>Original text>

Transitional provision

Until such time as amendments to this Directive are adopted upon proposal by the Commission in accordance with the provisions of Article 18, Member States may maintain in force or introduce any provisions affecting the use of a protected design for the purpose of permitting the repair of a complex product so as to restore its original appearance, where the product incorporating the design or to which the design is applied constitutes a component part of a complex product upon whose appearance the protected design is dependent.

>Text following EP vote>

Use of a design for repair purposes

1. By way of derogation from Article 12, the rights conferred by a design right shall not be exercised against third parties who use the design, provided that:

(a) the product incorporating the design or to which the design is applied is a component part of a complex product upon whose appearance the protected design is dependent; and

(b) the purpose of such a use is to permit the repair of the complex product so as to restore its original appearance; and

>Text following EP vote>

(c) the public is informed as to the origin of the product used for the repair by the use of an indelible marking, such as a trade mark or a trade name, or in another appropriate form; and

>Text following EP vote>

(d) the third party has:

(i) notified the right holder of the intended use of the design;

>Text following EP vote>

(ii) offered the right holder a fair and reasonable remuneration for that use; and

>Text following EP vote>

(iii) offered to provide the right holder in a regular and reliable manner with information as to the scale of the use made of the design under this provision.

>Text following EP vote>

2. Save as otherwise agreed, the obligations mentioned in paragraph 1(d) shall be incurred by the manufacturer or, in the case of the import of a component part not manufactured in the Member State where the protection applies, by the importer of the component part into which the design is to be incorporated or to which it is to be applied.

>Text following EP vote>

3. In calculating the remuneration, the investment made in development of the relevant design shall be the primary basis for consideration.

>Original text>

>Text following EP vote>

4. Paragraph 1 shall not apply if the right holder provides evidence to sustain a claim that the party upon whom the obligations under paragraph 1(d) are incumbent is unable or unwilling to comply with them or to pay the remuneration offered by him.

(Amendment 11)

Article 15

>Original text>

The rights conferred by a design right upon registration shall not extend to acts relating to a product in which a design included within the scope of protection of the design right is incorporated or to which it is applied, when the product has been put on the market in the Community by the holder of the design right or with his consent.

>Text following EP vote>

The rights conferred by a design right upon registration shall not extend to acts relating to a product in which a design included within the scope of protection of the design right is incorporated or to which it is applied, when the product has been put on the market in the Community by the holder of the design right or with his consent or in accordance with Article 14.

(Amendment 12)

Article 15a (new)

>Text following EP vote>

Article 15a

Right to information

1. The Court having jurisdiction to hear an action for infringement of a design right or to grant a request for interlocutory measures shall, at the request of the right holder and unless there are special reasons for not doing so, order a person to supply that right holder with information as to the origin and the route for the commercial distribution of goods allegedly infringing the design right, if the person in question:

>Text following EP vote>

(a) has been found in possession, for commercial purposes, of such goods, or

>Text following EP vote>

(b) has been identified by a person under (a) as being the origin, or a link in the route for the commercial distribution, of such goods.

>Text following EP vote>

2. The information referred to under paragraph 1 shall comprise:

>Text following EP vote>

(a) the names and addresses of producers, suppliers and other prior possessors of the product and of commercial recipients or outlets, as well as

>Text following EP vote>

(b) information on the quantity of goods which have been produced, delivered, received or commissioned.

>Text following EP vote>

3. Paragraphs 1 and 2 shall be without prejudice to other provisions:

>Text following EP vote>

(a) granting the right holder more far-reaching rights to information;

>Text following EP vote>

(b) governing the use of information provided under this Article, in penal or civil procedures;

>Text following EP vote>

(c) governing civil liability for the abuse of a right to information; or

>Text following EP vote>

(d) affording the possibility of refusing to provide information that would force the person referred to in paragraph 1 to admit the existence of an infringement.

(Amendment 13)

Article 18

>Original text>

Five years after the implementation date specified in Article 19, the Commission shall submit an analysis of the consequences of the provisions of this Directive for Community industry, for consumers, for competition and for the functioning of the internal market. It shall propose to the European Parliament and the Council any changes to this Directive needed to complete the internal market in respect of component parts of complex products and any other changes which it considers necessary.

>Text following EP vote>

Five years after the implementation date specified in Article 19, the Commission shall submit an analysis of the consequences of the provisions of this Directive for competition and the functioning of the internal market, for the industrial sectors which are most affected, particularly manufacturers of complex products and component parts, and for consumers. If necessary it shall propose to the European Parliament and the Council any changes to this Directive which prove necessary, after consultation with the parties most affected.

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