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# 51995AP0227

**Legislative resolution embodying Parliament' s opinion on the proposal for a European Parliament and Council Directive on the legal protection of designs (COM(93)0344 - C3-0513/93 - 00/0464(COD)) (Codecision procedure: first reading)** 
  
*Official Journal C 287 , 30/10/1995 P. 0157*

  

A4-0227/95

Proposal for a European Parliament and Council Directive on the legal protection of designs (COM(93)0344 - C3-0513/93 - 00/0464(COD))

The proposal was approved with the following amendments:

(Amendment 1)

Recital 18a (new)

>Text following EP vote>

18a. Whereas, as a matter of principle, each party bears the burden of proof for the actual requirements of the legal norm favourable to it; whereas the plaintiff would be required to prove the non-existence of facts if this principle continued to apply in the event of legal action arising from the novelty of design: whereas, to that extent, statutory provision should therefore be made for the burden of proof to be reversed;

(Amendment 2)

Article 1(a)

>Original text>

(a) 'design' means the appearance of the whole or a part of a product resulting from the specific features of the lines, contours, colours, shape and/or materials of the product itself and/or its ornamentation;

>Text following EP vote>

(a) 'design' means the outwardly visible appearance of the whole or a part of a product resulting from the specific features of the lines, contours, colours, shape and/or materials of the product itself and/or its ornamentation;

(Amendment 3)

Article 3(3)

>Original text>

3. A design of a product which constitutes a part of a complex item shall only be considered to be new and to have an individual character in so far as the design applied to the part as such fulfils the requirement as to novelty and individual character.

>Text following EP vote>

3. A design of a product which constitutes a part of a complex product shall only be considered to be new and to have an individual character to the extent that:

>Text following EP vote>

(i) the part when incorporated into the complex product, remains visible during normal use of the latter and

>Text following EP vote>

(ii) the visible features of the design of the part fulfil in themselves the requirement as to novelty and individual character.

>Text following EP vote>

3a. 'Normal use¨ within the meaning of paragraph 3(i) shall mean use by the end user and shall not include maintenance, servicing or repair.

(Amendment 4)

Article 4(2)

>Original text>

2. A design shall be deemed to have been made available to the public if it has been published following registration or otherwise exhibited, used in trade or otherwise disclosed. It shall not, however, be deemed to have been made available to the public for the sole reason that it has been disclosed to a third person under explicit or implicit conditions of confidentiality.

>Text following EP vote>

2. A design shall be deemed to have been made available to the public if it has been published following registration or otherwise exhibited, used in trade or otherwise disclosed, except where these events cannot reasonably be known to the specialized circles in the relevant sector operating within the European Union before the date on which registration was requested or the priority date, if priority is claimed. It shall not, however, be deemed to have been made available to the public for the sole reason that it has been disclosed to a third person under explicit or implicit conditions of confidentiality.

(Amendment 5)

Article 5(1)

>Original text>

1. A design shall be considered to have an individual character if the overall impression it produces on the informed user differs significantly from the overall impression produced on such a user by any design referred to in paragraph (2).

>Text following EP vote>

1. A design shall be considered to have an individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design referred to in paragraph (2).

(Amendment 6)

Article 5(3)

>Original text>

3. In order to assess individual character, common features shall as a matter of principle be given more weight than differences and the degree of freedom of the designer in developing the design shall be taken into consideration.

>Text following EP vote>

3. In order to assess individual character, common features shall as a matter of principle be given the same weight as differences and the degree of freedom of the designer in developing the design shall be taken into consideration.

(Amendment 7)

Article 7(2)

>Original text>

2. A design right shall not subsist in a design to the extent that it must necessarily be reproduced in its exact form and dimensions in order to permit the product in which the design is incorporated or to which it is applied to be mechanically assembled or connected with another product.

>Text following EP vote>

2. A design right shall not subsist in a design 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 assembled or connected with another product or mounted in, on or around it in order that both products perform their function.

(Amendment 8)

Article 9(1)

>Original text>

1. The scope of the protection conferred by a design right shall include any design which produces on the informed user a significantly similar overall impression.

>Text following EP vote>

1. The scope of the protection conferred by a design right shall include any design which produces on the informed user a similar overall impression.

(Amendment 9)

Article 9(2)

>Original text>

2. In order to assess the scope of protection, common features shall as a matter of principle be given more weight than differences and the degree of freedom of the designer in developing his design shall be taken into consideration.

>Text following EP vote>

2. In order to assess the scope of protection, common features shall as a matter of principle be given the same weight as differences and the degree of freedom of the designer in developing his design shall be taken into consideration.

(Amendments 15 and 10)

Article 14

>Original text>

The rights conferred by a design right shall not be exercised against third parties who, after three years from the first putting on the market of a product incorporating the design or to which the design is applied, use the design under Article 12, provided that:

>Text following EP vote>

1. The rights conferred by a design right shall not be exercised against third parties who use the design under Article 12, provided that:

>Original text>

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

>Text following EP vote>

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

>Original text>

(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>

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

>Original text>

(c) the public is not misled as to the origin of the product used for the repair.

>Text following EP vote>

(c) the public is informed as to the origin of the product used for the repair by the use of a trademark, or a tradename or in another appropriate form;

>Text following EP vote>

(ca) the holder of the right has been notified of the intended use of the design;

>Text following EP vote>

(cb) the holder of the right is offered fair and reasonable remuneration for the use of the design.

>Text following EP vote>

2. Save as otherwise agreed, the remuneration shall be paid by the manufacturer or, in the case of the import of a part manufactured outside the Community, by the importer of the part into which the design is to be incorporated or to which it is to be applied.

(Amendment 11)

Article 18a (new)

>Text following EP vote>

Article 18a

1. Whosoever infringes a design in commercial dealings, by manufacturing or distributing copied products, may be required by the holder or holders of the right to provide information without delay on the origin of and marketing arrangements for such products unless, in individual cases, this is disproportionate.

>Text following EP vote>

2. Whosoever is required under paragraph 1 to provide information shall give the name and address of the manufacturer, the supplier and other prior owners of the products, the commercial buyer or client and indicate the quantity of products manufactured, supplied, received or ordered.

>Text following EP vote>

3. This Article shall be without prejudice to more far-reaching rights to information.

(Amendment 12)

Article 18b (new)

>Text following EP vote>

Article 18b

In the event of legal action arising from a design, the design shall be presumed to be new within the meaning of Article 4, in favour of the owner of the right, in the absence of proof to the contrary.

(Amendment 14)

Article 18c (new)

>Text following EP vote>

Article 18c

No later than five years after the entry into force of this Directive, the Commission shall submit an analysis of the consequences of the provisions of this Directive for the industrial sectors most affected, and in particular for manufacturers of complex products and spare parts. If necessary, it shall propose to Parliament and the Council changes to this Directive, after consulting all the parties concerned.

Legislative resolution embodying Parliament's opinion on the proposal for a European Parliament and Council Directive on the legal protection of designs (COM(93)0344 - C3-0513/93 - 00/0464(COD))

(Codecision procedure: first reading)

The European Parliament,

- having regard to the Commission proposal to Parliament and the Council, COM(93)0344 - 00/0464(COD) ((OJ C 345, 23.12.1993, p. 14.)),

- having regard to Articles 189b(2) and 100a of the EC Treaty, pursuant to which the proposal has been submitted to Parliament by the Commission (C3- 0513/93),

- having regard to Rule 58 of its Rules of Procedure,

- having regard to the report of the Committee on Legal Affairs and Citizens' Rights and the opinion of the Committee on Economic and Monetary Affairs and Industrial Policy (A4-0227/95),

1. Approves the Commission proposal, subject to Parliament's amendments;

2. Calls on the Commission to alter its proposal accordingly, pursuant to Article 189a(2) of the EC Treaty;

3. Calls on the Council to incorporate Parliament's amendments in the common position that it adopts in accordance with Article 189b(2) of the EC Treaty;

4. Should the Council intend to depart from the text approved by Parliament, calls on the Council to notify Parliament and requests that the conciliation procedure be initiated;

5. Points out that the Commission is required to submit to Parliament any modification it may intend to make to its proposal as amended by Parliament;

6. Instructs its President to forward this opinion to the Council and Commission.

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