C 184/42
EN
Official Journal of the European Union
25.5.2023
— The first limitation is sometimes referred to as the ‘must match’ exception (Article 8(2)).
The external appearance of a product that is necessary to connect to another product cannot be protected. — The second limitation concerns the protection of parts that are not visible.
4.1.6.
A part which is not visible during normal use of the product cannot be protected by filing of a design (Article 4(2)).
These include: — watch mechanisms, — the interior of most motors for household appliances, — the engine of a car (not considered to be visible during normal use of a vehicle, even if it can easily be made visible by lifting the bonnet).
4.1.7.
Therefore, the spare parts that can be protected are those that do not include any interconnection mechanism and are visible.
Under the regulation, it is therefore possible to protect a large number of parts.
For example, for a car this includes: — headlights, — wing mirrors, — bonnets and doors (but not hinges), — steering wheels.
4.1.8.
A product which is not protected by filing of a design can therefore be reproduced by any competing producer of spare parts and fed into the repair market.
4.1.9.
However, the application of these provisions has raised questions.
The EESC therefore welcomes the fact that the proposal for a regulation takes into account the solution put forward by the Court of Justice of the European Union in its ‘Acacia’ judgment of 20 December 2017, in which it clarified the interpretation to be given to the concept of ‘repair clause’.
4.1.10.
The EESC points out that the Paris Court of Appeal specifically applied this solution in its judgment of 11 September 2018 in Case No 2017/01589 in the case of rims marketed on an online sales site.
The repair clause could not have been legitimately invoked by the seller since the rims were offered ‘for the aesthetic personalisation of vehicles’ and for ‘tuning’ purposes.
The rims in question were therefore found to be counterfeit and the seller penalised for the infringement.
4.1.11.
Some Member States have liberalised the spare parts market.
The French Climate and Resilience Law No 2021-1104 of 22 August 2021 opened the market to the sale of certain spare car parts as from 1 January 2023.
4.1.12.
The aim of this measure was to lower prices on this market; between 2019 and 2020, they had increased on average by 8 %, partly due to the technical complexity of the various parts such as the motors on electric mirrors, sensors installed in windscreens, etc.
The most liberal countries for this sector do not have a highly developed industry, with the notable exception of Germany, which has powerful car manufacturers but where the market is already more open.
In France, as from 1 January 2023, equipment manufacturers, whether they produce original equipment, i.e. are involved in the assembly of the new vehicle, or are independent producers, can market flat glass parts.
Equipment manufacturers involved in the original assembly of other visible spare parts (optical components, rear-view mirrors, etc.) will therefore be able to market the parts like manufacturers. 4.2.
Cost of protecting designs 4.2.1.
The EUIPO has a system for filing designs online, the cost of which currently starts at EUR 350.
The EESC points out that a registered Community design is valid for an initial period of five years from the date of filing and can be renewed every five years up to a maximum of 25 years.