Source: EURLEX
Language: en
Format: md

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| EVALUATION ROADMAP | |
| Roadmaps aim to inform citizens and stakeholders about the Commission's work to allow them to provide feedback and to participate effectively in future consultation activities. Citizens and stakeholders are in particular invited to provide views on the Commission's understanding of the problem and possible solutions and to share any relevant information that they may have. | |
| Title of the evaluation | Evaluation of EU legislation on design protection |
| Lead DG – responsible unit | GROW/F5 |
| Indicative Planning  (planned start date and completion date) | Q2 2018 – Q2 2019 |
| Additional Information | https://ec.europa.eu/growth/industry/intellectual-property/industrial-design/protection\_en |
| The Roadmap is provided for information purposes only. It does not prejudge the final decision of the Commission on whether this initiative will be pursued or on its final content. All elements of the initiative described by the document, including its timing, are subject to change. | |

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| A. Context, purpose and scope of the evaluation |
| Context |
| Design-intensive industries play an important role in the EU economy. In a study by the European Union Intellectual Property Office/European Patent Office they were estimated to have generated 12.2% of EU employment and 12.8% of EU GDP in 2013. Design is what makes a product appealing and visual appeal is one of the key factors that influence consumers' choice of preferring one product over another. Well-designed products create an important competitive advantage for producers, and companies that invest in design tend to be more profitable and grow faster. Design rights cover the appearance of a product or part of it and in order to encourage innovation and the creation of new product design, there is (increasing) need for accessible, modern, effective and consistent legal protection for those rights.    The laws of the Member States providing for design protection at domestic level were partially harmonized by Directive 98/71/EC ('the Directive'). That harmonization was intended to promote the internal market and prevent Union-wide competition being distorted by ensuring that the conditions for obtaining registered design rights be identical and that those rights confer upon right-holders equivalent protection in all Member States. As it was however not possible to harmonize design protection for spare parts, Member States were allowed to retain their existing laws on whether spare parts should benefit from such protection until amendments to the Directive are adopted, although they were permitted to only amend those laws if the purpose was to liberalize the spare parts market.     As a complement alongside national systems, and with the aim of creating a more accessible, simple and expeditious design protection system adapted to the needs of the internal market and all commercial sectors, Regulation (EC) 6/2002 ('the Regulation') established autonomous unitary protection for designs in 2003 in the form of the ‘unregistered Community design’ and, in particular, the ‘registered Community design’. The unregistered Community design right simply arises by virtue of first disclosure in the European Union without requiring registration. The registered Community design right is granted and administered by the European Union Intellectual Property Office (EUIPO), upon one application made to the EUIPO in accordance with a single procedure under one law, and has, like also the unregistered Community design, uniform effect throughout the Union. The demand for registered Community designs has been steadily rising overall from their start to reach a total of more than 300.000 Community design applications filed up to now (covering almost 1.200.000 designs in total and 4 designs per application on average).    While the Directive and Regulation were already adopted in 1998 and 2001 respectively, only the Regulation has been amended once in 2006 to give effect to the accession of the Union to the Geneva Act of the Hague Agreement concerning the international registration of international designs.    No overall evaluation of the Directive and Regulation has taken place since their adoption. The sole exception concerns their transitional provisions on design protection for spare parts, the evaluation of which served as base for proposing in 2004 the removal of the option for Member States to retain such protection at national level. The relevant Commission proposal (COM(2004) 582 final) did however not find sufficient support in the Council and was finally withdrawn in 2014. As a consequence there continues to be no single market for spare parts due to the persisting transitional arrangements.    Furthermore, the comprehensive reform of the European Union legislation on trade marks, which was concluded in 2017, is also partly relevant to the European Union legislation on design protection or at least raises questions of consistency. |
| Purpose and scope |
| The purpose of this evaluation is to provide an in-depth assessment of the overall functioning of the design protection system in the European Union including both Union and national levels. It shall analyse to what extent the current EU legislation on design protection, consisting of the Directive and the Regulation, has achieved its objectives in terms of efficiency, effectiveness, relevance, coherence and EU added value, and it shall provide clear indications of the degree to which that legislation is still considered to be fit for purpose.    The evaluation shall provide a solid evidence base, allowing to draw conclusions on the impacts on the original objectives and the need for improvements, modernisation and streamlining. Eventually, it may feed into an impact assessment study for a possible amendment of the Directive and the Regulation and/or other targeted initiatives.    To that end, the evaluation shall, in particular, assess    Øthe degree of uptake of design protection (both in registered and unregistered form) by industries in the European Union and the added-value of such uptake for these industries;    Øthe degree of efficiency of the Community design regime and its procedures, and identify potential areas for simplification, e.g. where the current rules generate unnecessary burdens for the Office and its users;    Øto what extent the system works well and achieves its objectives; on this basis, whether and to what extent the effectiveness of provisions of the Directive and the Regulation, in particular in relation to the subject-matter and scope of design protection, has potentially been impaired by insufficient clarity or other shortcomings;    Øthe consequences of the fact that the rules applicable to spare parts have not been harmonised at EU level and that a majority of Member States retain, until today, design protection for spare parts at the national level;    Øwhether the level of design protection offered by the Directive and the Regulation is adequate, amongst others with a view to effectively assisting in the fight against counterfeiting;    Øwhether the present European Union legislation on design protection and its objectives are still relevant and valid and meeting current business needs, not least in view of latest technical advances such as in relation to 3-D computer-animated representations or 3-D printing, and taking also account of the extent of reliance on unregistered design rights;    Øwhether and to what extent beyond the issue of design protection for spare parts the current degree of harmonisation both among Member States' laws themselves and between the Union and national design systems is considered to be still appropriate or otherwise hindering the creation of a level playing field;     Øthe degree of coherence of the present European Union legislation on design protection in itself and with the recently reformed European Union legislation on trade marks, as well as with third country legislation (e.g. US etc.);    Øthe additional value resulting from the Directive and the Regulation, compared to what could reasonably have been expected from Member States acting at national and/or regional level.    The evaluation of the Directive and Regulation will cover the 28 EU Member States in the period from 2003 (first year of receipt of Community design applications by the EUIPO) up to now. |
| B. Better regulation |
| Consultation of citizens and stakeholders |
| The main objective of the consultation activities will be to ensure a sound evidence base for responding to the evaluation criteria (effectiveness, efficiency, coherence, relevance and EU added value of the Union legislation on design protection) seeking information and feedback from all relevant stakeholders. Those stakeholders include:    -representatives from the public sector, i.e. public administrations, bodies and organisations in the Union and Member States dealing with design rights;    -private-sector representatives, notably from Union-wide bodies and associations representing the various economic sectors, including design and creative industries, small and medium sized enterprises, individual designers, design right owners as well as legal practitioners and professional representatives in the area of design law and intellectual property in general;    -general public, civil society and consumer organisations.    To that effect, the following consultation activities are planned to be conducted during the evaluation process:    ·A targeted consultation in the form of surveys/questionnaires will be addressed to major stakeholders, including both Member States’ Intellectual Property Offices and user associations (autumn 2018).    ·An internet-based public consultation will support the evidence gathering under this evaluation. It will be made available on the Commission’s central public consultations page (https://ec.europa.eu/info/vonsultations\_en) in 23 EU languages for 12 weeks (autumn 2018).    ·Follow-up discussions with the stakeholders addressed by the targeted consultation will be held making use of Commission-run Expert Groups, group meetings with user associations and workshops (winter 2018/2019).    At the end of the consultation work, an overall synopsis report will be drawn up covering the results of the different consultation activities. It will be made available on the consultation website. |
| Data collection and methodology |
| Two previous studies have already been conducted, the findings of which shall feed into the overall evaluation. These are:    ·“Economic Review of Industrial Design in Europe” (2015)  (http://ec.europa.eu/growth/content/economic-review-industrial-design-europe-0\_en)    ·“Legal Review of on Industrial Design Protection in the EU” (2016)  (http://ec.europa.eu/growth/content/legal-review-industrial-design-protection-europe-0\_en)    Such findings will be complemented by additional information and evidence to be collected via the consultation activities referred to in the section "consultation of citizens and stakeholders" above, as well as internal and external research on, for example, but not limited to, the issue of design protection for spare parts or on 3-D printing. |

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