CELEX: 51996PC0066
Language: en
Date: 1996-02-21
Title: Amended proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE on the legal protection of designs

COMMISSION OF THE EUROPEAN COMMUNITIES
                                 Brussels, 21.02.1996
                                 COM(96) 66 final - COD 464
                  Amended proposal for a
EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
             on the legal protection of designs
 (presented by the Commission pursuant to Article 189a(2)
                     of the EC Treaty)
 ---pagebreak---  ---pagebreak---                             EXPLANATORY MEMORANDUM
GENERAL PRESENTATION
In January 1994, the Commission submitted to the Council and the European Parliament
proposals ("the Proposals") for a Regulation on the Community design(1) ("the Regulation")
and for a Directive on the legal protection of designs(2) ("the Directive").
The Economic and Social Committee adopted a first opinion on 6 July 1994(3) and an
additional opinion on 22 February, 1995(4).
The European Parliament decided to discuss the proposal for the Directive first and to conduct
the second reading when it adopts a position on the proposal for a Regulation. Following this
decision, Parliament adopted its opinion on the Directive during its plenary session
of 9 - 13 October 1995(5).
In its opinion, Parliament followed the opinion of industries in endorsing the Commission's
initiative. This positive opinion is, however, subject to 13 amendments.
Parliament concentrated mainly on the definition of design, the requirements for protection,
the exclusion from protection of certain elements to promote interoperability of products and,
in particular, on reproduction for repair purposes. The solutions chosen to resolve these issues
are also of major importance for the future Regulation, where most material provisions must
of course be identical to those found in the Directive.
The purpose of this amended proposal is to take account of these amendments and to clarify,
where necessary, the wording of a number of provisions.
The Commission was able to adopt all amendments proposed by the European Parliament
except one, which concerned the introduction of the idea of a legal assumption of novelty in
infringement cases before national Courts. In concrete terms, the amendment stated that, in
such cases, the burden of proof on the existence of a previous and identical design should
always be assigned to the infringer. Such a provision is not appropriate in the context of the
Directive, because the latter concerns national registration procedures, and because
Member States are left free to decide whether they wish to let examining Offices establish
the novelty of a design prior to registration or not. Where Member States do have an
examining Office, such a provision would be superfluous at best, because novelty would have
been established ex officio. Furthermore, and irrespective of the existence of such Offices,
the provision would make unwarranted inroads on Member State rules on court procedure.
Both reasons render the provision undesirable in the context of the Directive.
(1)
      OJ No C 29, 31.1.1994, COM(93) 342 final.
(2)
      OJ No C 345, 23.12.1993, COM(93) 344 final.
(3)
      OJ NoC 388, 31.12.1994.
(4)
      O J N o C 110, 2.5.1995.
(i)
      Not yet published.
 ---pagebreak--- As regards one other amendment, namely that relating to the requirement of individual
character (Article 5, paragraph 1), the Commission has only with some reluctance been able
to follow Parliament, because the amendment reduces the "threshold" for protection.
Moreover, the amendment also has some bearing on the second paragraph of Article 5. This
provision, which introduced a limitation of the designs with which a comparison was to be
made when assessing the individual character of a design, was intended to alleviate the effect
of the relatively high threshold originally proposed by the Commission and to avoid a
situation where access to protection would have become unduly difficult. As the provision has
become superfluous after the lowering of the "threshold" requested by Parliament, it was
deleted in the amended proposal.
EXPLANATIONS AS TO THE RECITALS
The only Parliament amendment relating to the recitals is a proposal for a new recital which,
in turn, is linked to the abovementioned proposal for a provision introducing a procedural
assumption. As the Commission cannot, as mentioned above, accept that amendment, it can
only reject the recital referring to it as well.
The Commission has, on the other hand, introduced six new Recitals: Recital 12a,
which clarifies the amendment referring to the protection criteria for parts in Article 3(3),
Recitals 16a, 16b, 16c and 16d, which refer to Article 14 and, more specifically, to the
remuneration right introduced by Parliament's amendment to Article 14, and, finally,
Recital 16e, which states the grounds for the new provision relating to a right to information,
which was included in the amendment proposal as Article 16a, following an amendment by
the European Parliament.
For an explanation as to Recitals 12a, 16a, 16d and 16e, reference is made to the explanation
given in this memorandum in relation as to the Articles to which they refer. Recitals 16b
and 16c are clarified hereunder.
Recital 16b
This Recital clarifies one aspect in the application of the repair clause with a remuneration
system. In some cases, an agreement between the right holder and the third party as to the
amount of money which can, in a specific case, be deemed to represent a "fair and reasonable
remuneration" may be lacking. If the application of the repair clause were to be made
preconditional upon such an agreement, the third party would sometimes have to wait for a
considerable amount of time before an agreement is reached and before being able to use a
design for repair purposes. Where, in some cases, the remuneration would have to be fixed
through litigation or arbitration over the course of several years, the repair clause would have
been rendered ineffective. The purpose of this Recital is to avert this danger.
Notwithstanding this Recital, the right holder remains protected against mala fide third parties
through the safeguard provision introduced in Article 14, paragraph 4.
 ---pagebreak--- Recital 16c
This Recital has been introduced to make it clear that the use of the repair clause does not
in any way establish a relationship between the right holder and the third party which can be
compared to that existing between a licensor and a licensee. The Recital also states that the
consumer who chooses to have a product repaired with parts stemming from a third party
does not thereby derive any rights or claims against the manufacturer of the complex product.
The remaining amendments to the recitals aim at the clarification of the text or the necessary
adaptation of the recitals following amendments of the Articles to which they relate.
EXPLANATION AS TO THE ARTICLES
In order to make it easier to cross-reference similar Articles which can be found in both
Proposals, the Commission has added headings to the various Articles for the Directive
proposal. It is understood, however, that these headings are not legally binding.
Article 1
Paragraph (a)
This paragraph has been changed, in accordance with an amendment adopted by the
European Parliament, by adding wording to the effect that the design to be protected must be
"outwardly visible".
It must first of all be pointed out in this context that the addition of a visibility criterion in
Article 1 brings into focus a confusion concerning various meanings of the word "part" in the
English language. In Article 1, the word is used to describe any feature of a product, while
in Article 3(3) and in Article 14, the word is used to describe, in concrete terms, a component
part, which is usually also a product in its own right. That is why the word "component" has
been added to Article 3(3) and to Article 14, that is, whenever the word "part" is used to
describe, concretely, a component part.
Bearing this differentiation in mind, the visibility criterion introduced by the
European Parliament can be looked at more closely. It must be pointed out that the
Commission does not expect this amendment to entail substantial changes in the application
of the provision itself. Indeed, this amendment must not be confused with the amendment to
Article 3, which states that parts, in order to be eligible for protection, have to remain visible
during the normal use of the complex product they belong to. The criterion introduced in
Article 1 does not look at the visibility of the part as component part of a complex product,
as provided for in Article 3(3), but of the appearance of a product or a part thereof. Therefore,
if a right holder wishes to protect the appearance of, for example, the interior compartments
of a suitcase (which do not constitute component parts within the meaning of Article 3,
 paragraph (3), but which are a part within the meaning of Article 1), he can do so by
applying for protection of a part of a product which, in the case of his application, is
 "the compartments of a suitcase". The design for which protection is claimed is then
 outwardly visible.
 ---pagebreak--- Thus, an appearance will only be invisible and lead to exclusion from protection in the rarest
of cases, such as, for example, the boring of a firearm barrel. However, an exclusion from
protection for component parts of complex products, which are independent products in their
own right, may follow from the provision in Article 3, paragraph (3).
Another change is the addition of the wording "in particular", where the Commission follows
a proposal of the Economic and Social Committee. The intention of this proposal is to clarify
that the list of features of appearance is not meant to be exhaustive.
Finally, the addition of the wording "texture" intends to add a dimension of design which was
deemed to be lacking in the original proposal.
Article 2
Paragraph 2 (new)
This paragraph has been inserted to clarify that the scope of application of the Directive also
 covers designs in Member States which do not have a formal registration system, but where
 protection is granted after a deposit and official publication of the design.
 Article 3
 Paragraph 3
 To comply with the amendments made by the European Parliament, an extra requirement
 relating to the protection of parts has been added to this paragraph: the visible featiires of
 parts of a complex product can only qualify for protection in their own right if the parts
 are visible during normal use of the complex product. The amendment is especially
 relevant to the automotive-industry, where it means that certain spare parts, the so-called
 "under-the-bonnet" parts, are excluded from protection.
 In order to avoid a confusion as regards the word "part", which, in English, can have two
 meanings, the word "component" has been added to the text (see explanation as regards
 Article 1).
 Paragraph 4
 Following the amendments adopted by the European Parliament as regards paragraph 3, this
 paragraph defines the notion of "normal use". It should be noted that this requirement should
 not be understood to mean that parts must be visible at all times during normal use. in the
 case of a car, normal use can also mean that someone sits in the back of the car, or walks
  around it. The wording does, however, exclude from protection those parts whose design does
 not normally play a role for the consumer because it is only visible during repair or
  maintenance.
 ---pagebreak--- Article 4
Paragraph 2 (deleted)
The original paragraph 2 has been amended and moved to Article 6 in the Directive. This
change is related to the amendment to Article 5, paragraph (2), which made it possible to
regroup the provisions on the disclosure of the design in a single provision which would be
applicable both to Article 4 and Article 5.
Article 5
Paragraph 1
Paragraph 1 defines the individual character of a design and, in effect, sets the threshold for
protection. The European Parliament has wished to lower this threshold by deleting the word
"significantly". Because the provision still contains the requirement of a different overall
impression, this deletion does not unduly lower the threshold, and the Commission therefore
feels it can accept the amendment.
As a consequence of the lowering of the "threshold", the Commission did, however, feel
compelled to delete paragraph (2) of the initial proposal, for the following reason. In order
to alleviate the effect of the relatively high threshold provided for in the original wording of
paragraph (1), paragraph (2) substantially restricted the designs which were to be taken into
consideration as comparison material when assessing the individual character of a design.
Now that the "threshold" has been lowered, such a limitation would be counterproductive, and
the comparison should therefore be made with any design disclosed before the design in
question. This wording was easily integrated into paragraph (1). This change, in turn, made
it possible to have a single Article defining the concept of "making available to the public"
for Article 4 as well as for Article 5 (see the explanation concerning Article 6).
Paragraph 2
This paragraph (paragraph 3 in the original Commission proposal) contains a set of guidelines
for use by national Courts when assessing the individual character of a design. In this
assessment, commonalties with a previous design were, originally, to be given more weight
than differences. The intention of this provision was to make sure that, in order to achieve
protectability for a new design, it would not be enough to introduce a certain number of
minor differences to an existing one. However, following its wish to lower the "threshold"
in paragraph 1, the European Parliament also wanted to give equal weight to commonalties
and differences. The amendment of the guideline in accordance with these wishes, however,
deprives it of its specific significance and thereby makes it redundant. The Commission
therefore chose to delete it in its amended proposal and to restrict the guidance to that relating
to the freedom of the designer.
 ---pagebreak--- Article 6
Paragraph 1
The original Article 4(2) has been transferred to Article 6 since this provision not only
concerns Article 4, but also Article 5, in its new form.
The Article has furthermore been amended in accordance with the wishes of the
European Parliament and the Economic and Social Committee through the introduction of
what is commonly known as the "safeguard clause". Its aim is to protect the design industry
from claims that a design right is not valid because there was an earlier design in use
somewhere in the world where the European industry could not possibly have been aware of
it. The intention of this provision is to avoid the situation where design rights can be
invalidated by infringers claiming that antecedents can be found in remote places or museums.
Paragraph 2
This paragraph has been transferred from paragraph 1 in the original Commission proposal.
Paragraph 3
This paragraph (paragraph 2 in the original Commission proposal) was reworded to clarify
the case where disclosure is the result of a breach of confidence. There is no change in
substance.
Article 7
Paragraph I
Although the question whether a design does or does not contain any aesthetic elements is
irrelevant in the context of the requirements for protection, as set out in the Proposal, the need
was felt for a provision indicating that protection should not be available in those extremely
rare cases where form necessarily follows function. Even though Parliament did not adopt an
amendment concerning Article 7, paragraph (1), the Commission felt that clearer wording was
needed, especially after the amendment proposed as regards paragraph (2).
Paragraph 2
Paragraph 2 has been reworded to allow for the wishes of the European Parliament, which
sought a clearer definition of the "must fit" clause. The current text is closely modelled upon
the corresponding provision of the United Kingdom Patents, Designs and Copyright Act 1988.
Article 8
The wording of Article 8 has been modified slightly in order to clarify that it is not the
exploitation or publication of a design, but the design itself which may be contrary to public
policy or morality.
 ---pagebreak--- Article 9
Paragraph 1
The word "significantly" has been deleted in order to follow the wishes of the
European Parliament. Also, the wording "similar" has been replaced by the wording "not
different". This negative qualification was chosen to ensure compatibility between the
formulation of the scope of protection in Article 9, paragraph (1), and the definition of
individual character given in Article 5(1). Indeed, these provisions have to be worded so as
to avoid the situation where different interpretations of the wording "similar" and "not
different" would create a grey area where a design is eligible for protection in its own right
under the wording of Article 5, and, at the same time, constitutes an infringement of a prior
design under the wording of Article 9. This danger has been averted through the uniform use
of the wording "not different". This wording, as used in Article 9, paragraph (1), defines a
criterion which is an exact mirror image of that defined in Article 5, paragraph (1).
Consequently, all designs which do not qualify for individual character will be considered to
be infringing.
Paragraph 2
The explanation given for the amendment of Article 5, paragraph (2) also applies to the
amendment to this paragraph.
Article 11
Paragraph 1
As this provision is intended to provide an exhaustive list of invalidity grounds, several
grounds which exist in certain Member States, but were missing in the original proposal were
added in paragraphs (e), (f) and (g). Because the instances of unauthorized use described in
these new grounds can be prosecuted and prohibited by virtue of the relevant rights, the scope
of these grounds is rather limited. Their main aim is to ensure that, regardless of the
possibility of prohibiting infringements, infringing rights can be taken off the design registers,
thus contributing to keeping these registers "clean".
Furthermore, the provision which was contained in paragraph (2) of the original proposal is
now to be found in paragraph (h). This is a drafting amendment only
Paragraph 2 (new)
In a number of cases, only minor alterations of the design are required to avoid invalidity. A
possibility to protect the design in an amended form has therefore been foreseen.
Paragraph 4
This paragraph was to be found in Article 16 of the Commission's original proposal and has
been integrated into Article 11 in the interest of coherence.
 ---pagebreak--- Article 14
Several important amendments of the European Parliament focused on modalities of the
repair clause contained in Article 14.
Paragraph 1
Where the initial proposal provided free reproduction of certain spare parts after a phase-in
period of three years, the European Parliament has in its amendments eliminated this phase-in
period and introduced a remuneration system that will operate as from the date of registration '
of the design.
Further, in order to provide the right holder with the information which is needed to establish
the correctness of the remuneration paid by the third party, the Commission has introduced
an additional obligation, namely an obligation for the third party to offer to provide such
information in a regular and reliable manner.
In order to avoid confusion concerning various meanings of the word "part" (see the
explanation concerning Article 1), the word "component" was added to the wording of this
paragraph.
Paragraph 2 (new)
This paragraph was inserted to comply with a European Parliament amendment which
provided that, when parts falling within the scope of application of the repair clause are
manufactured outside the Community and then imported, the remuneration must be paid by
the importer. This provision was slightly modified to guarantee payment of the remuneration
also in cases of intra-Community trade, when parts are reproduced freely in a Member State
where the designer or his successor in title has not taken out protection of the relevant
designs, and are then imported into another Member State where he has. In this last case, the
Community exhaustion of rights doctrine cannot apply, because its decisive element, namely
the existence of a situation where a product has been put on the market with the consent of
the right holder, is missing.
Paragraph 3 (new)
The Commission has followed the line set out by the European Parliament, but has added a
set of guidelines to ensure that the remuneration system functions similarly throughout the
Community, and that the spare part market becomes a level playing field.
Existing legislation concerning similar systems provides little guidance as to what is
considered to be a "fair and reasonable remuneration". Failing agreements by the parties
concerned, the rate of remuneration is normally decided by domestic Courts. Since
interference with national procedures needs to be avoided, it did not seem appropriate to deal
with procedural aspects. However, in order to reduce litigation and/or arbitration, the
Commission considered that it would be necessary to clarify the basis which should be used
in calculating the amount of the remuneration.
 ---pagebreak--- The most realistic basis for such calculation seems to be an amount related to the costs
incurred by the original producer in developing the design. This investment should therefore
primarily be taken into consideration.
Paragraph 4 (new)
In devising concrete guidelines for the functioning of the repair clause with a remuneration
system, one of the concerns of the Commission is that, in case of manifest abuse of the
repair clause, a right holder should not be deprived of the effective legal remedy provided
under national law by an infringement action. This could for example be the case when a
right holder is confronted with a third party who refers to the repair clause, but who is or will
evidently be unable or unwilling to pay the remuneration offered by him, or to furnish the
information which is needed by the right holder to assess if he has received the right
remuneration. Therefore, the Commission introduced a provision to the effect that, if a right
holder can provide evidence to sustain such a claim, he can avail himself of such infringement
procedures as are provided for under national law.
Paragraph 5 (new)
This paragraph, which provides for an analysis of the functioning of the repair clause
five years after the entry into force of the Directive, was inserted to comply with an
amendment adopted by the European Parliament. Such an analysis will be especially relevant
in assessing the effects of the repair clause in ensuring the existence of an open market in the
sector of spare car parts.
Although the Parliament amendment provided for an analysis of the functioning of the
Directive as a whole, the Commission considered that it would act in accordance with
Parliament's intentions by restricting the scope of such an analysis to the effects of the
repair clause. Indeed, the effects of the Directive as a whole can only be assessed after it has
been transposed in all Member States, i.e. well into the five-year period, whereas the effects
of the repair clause could probably be assessed fairly rapidly.
Article 15
The extent of the repair clause could have certain repercussions on the provision dealing with
the exhaustion of rights, contained in Article 15.
With reference to the cases C-19/84 Pharmon BV v Hoechst AG [1985] ECR2281 and
C-9/93 IHT Internationale Heiztechnik GmbH and UWE Danziger v Ideal Standard GmbH
and Wabco Standard GmbH [1994] ECR 1-2789, where the exhaustion was deemed not to
apply because of a lack of consent, it was thought advisable to clarify that, notwithstanding
the fact that application of Article 14 may imply that no consent has been given, the
exhaustion of rights-doctrine still applies.
                                                 10
 ---pagebreak--- Article 16 (new)
The original Article 16 is now to be found in Article 11(4).
The new Article 16 has been inserted in accordance with the wishes of the
European Parliament and the European Economic and Social Committee. It was felt that such
a provision was needed in this area in order to provide more means to fight counterfeiting.
The provision is modelled on, albeit not identical to German law. As formulated, it makes it
clear that, in the case of interlocutory measures, the information can be requested prior to the
final judgement in an infringement case.
The provision contained in paragraph (3)(d) states that the obligation to provide information
cannot run counter to the generally recognised principle of law that one cannot legally be
compelled to incriminate himself.
Article 18
Paragraph 1
This paragraph has been modified following the suggestion that the Directive on the legal
protection of designs may not be the appropriate place for the harmonisation of copyright law.
Paragraph 2 (deleted)
This paragraph, which contained the requirement of national treatment, required each
Member State to guarantee nationals of other Member States a treatment which is not less
favourable than that given to its own nationals with regard to the protection of designs under
national copyright law. However, according to case C-92/92 Phil Collins v Imtrat [1993]
ECR I -5145, the principle of national treatment follows from the non-discrimination
principle in Article 6 EC Treaty, and is thereby already guaranteed by Community law The
original provision was therefore superfluous, and the Commission deleted it.
Article 19
Paragraph 1
As a result of delays in the procedure leading to final adoption of the Directive, the date by
which it has to be transposed into national law has been modified.
                                                11
 ---pagebreak---                                  Amended proposal for a
               EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
                             on the legal protection of designs
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community and in particular
Article 100a thereof,
Having regard to the proposal by the Commission(1),
Having regard to the opinion of the Economic and Social Committee(2),
Acting in accordance with the procedure laid down in Article 189b of the Treaty(3),
(i)
      OJ NoC 345, 23.12.1993, p. 14.
(2)
      OJ No C 388, 31.12.1994, p. 9 and OJ No C 110, 2.5.1995, p. 12.
(3)
       Opinion of the European Parliament of 12 October 1995, OJ No C 287, 30.10.1995,
       p. 157
       Common Position of the Council of ... 1996 (not yet published in the Official Journal)
       Decision of the European Parliament of ... (not yet published in the Official Journal).
                                              12
 ---pagebreak---        Original proposai                           Amended proposal
1. Whereas the objectives of the          1. Unchanged.
   Community as laid down in the
   Treaty include establishing an ever
   closer union among the peoples of
   Europe, fostering closer relations
   between the States belonging to the
   Community, and ensuring the
   economic and social progress of
   the Community countries by
   common action to eliminate the
   barriers which divide Europe,
   whereas to that end the Treaty
   provides for the establishment of
   an internal market and includes the
   abolition of obstacles to the free
   movement of goods and the
   institution of a system ensuring
   that competition in the common
   market is not distorted, whereas an
   approximation of the laws of the
   Member States on the legal
   protection of designs would further
   those objectives;
2. Whereas designs are not at present        Unchanged.
   protected in all Member States by
   specific legislation and such
   protection, where it exists, has
   different attributes;
3. Whereas such differences in the        3  Unchanged.
   legal protection of designs offered
   by (he legislation of the Member
   States have direct and negative
   effects on the establishment and
   functioning of the internal market
   as regards goods embodying
   designs; whereas such differences
   will distort competition within the
   internal market;
                                       13
 ---pagebreak---            Original proposal                           Amended proposal
4.  Whereas it is therefore necessary        4.   Unchanged.
    for the proper functioning of the
    internal market to provide for
    specific design protection law in all
    Member States and to approximate
    the design protection laws of the
    Member States;
5.  Whereas in doing so it is important      5.   Unchanged.
    to take into consideration the
    solutions and the advantages with
    which the Community design
     system will provide undertakings
    wishing to acquire design rights;
6.   Whereas it is unnecessary to             6.  Unchanged.
     undertake a full-scale
     approximation of the design laws
     of the Member States, and it will
     be sufficient if approximation is
     limited to those national provisions
     of law which most directly affect
     the functioning of the internal
     market; whereas the objectives of
     this limited approximation cannot
     be sufficiently achieved by the
     Member States acting alone;
 7.  Whereas Member States should              7.  Unchanged.
     accordingly remain free to fix the
     procedural provisions concerning
      registration and invalidation of
      design rights and provisions
      concerning the effects of such
      invalidity;
 8.   Whereas this Directive does not              Whereas this Directive does not
      exclude the application to designs           exclude the application to designs
      of the legislation of the Member             of national or Community
      States other than that relating to           legislation providing for protection
      the specific protection acquired by          other than that conferred by
      registration, such as the legislation        registration or publication as
      relating to unregistered design              design, such as the legislation
       rights, trademarks, patents and             relating to unregistered design
       utility models, unfair competition          rights, trademarks, patents and
       or civil liability,                         utility models, unfair competition
                                                   or civil liability;
                                            14
 ---pagebreak---        Original proposal                           Amended proposal
Whereas the attainment of the           9.  Whereas the attainment of the
objectives of the internal market in        objectives of the internal market in
the field of designs may only be            the field of designs may only be
fully realised following further            fully realised following further
harmonisation of the relevant               harmonisation of the relevant
provisions of the copyright laws of         provisions of the copyright laws of
Member States, in particular those          Member States, in particular those
relating to the criterion of                relating to the criterion of
originality; whereas, pending such          originality; whereas, pending such
further harmonisation, it is                further harmonisation, it is
important to establish the principle        important to establish the principle
of cumulation of protection under           of cumulation of protection under
specific registered design                  specific registered design
protection law and under copyright          protection law and under copyright
law, whilst leaving Member States           law, whilst leaving Member States
free to establish the extent of             free to establish the extent of
copyright protection and the                copyright protection and the
conditions under which such                 conditions under which such
protection is conferred; whereas it         protection is conferred; whereas it
is, however, necessary to abolish in        is contrary to Community law to
the relationship between Member             apply, in the relationship between
States the requirement that                 Member States, Article 2 paragraph
protection under copyright law              (7) of the Berne Convention for
shall be afforded only subject to           the Protection of Literary and
reciprocity in the country of origin        Artistic Works, which provides that
of the design, as such a                    protection under copyright law
requirement would run contrary to           shall be afforded only subject to
the principle of non-discrimination;        reciprocity in the country of origin
                                            of the design, as such a
                                            requirement is incompatible with
                                            the principle of non-discrimination;
Whereas the attainment of the           10. Unchanged.
objectives of the internal market
requires that the conditions for
obtaining a registered design right
be not only identical in all the
Member States but also identical to
those required for obtaining a
registered Community design;
whereas to that end it is necessary
to give a unitary definition of the
notion of design and of the
requirements as to novelty and
individual character with which
registered design rights must
comply;
                                     15
 ---pagebreak---            Original proposal                         Amended proposal
11. Whereas semiconductor products          11. Unchanged*4*.
    should not be excluded as products
    whose appearance could form the
    subject of a design right, since
    Member States may choose design
    legislation to implement the
    provisions of Council
    Directive 87/54/EEC of
    16 December 1986 on the legal
    protection of topographies of
    semiconductor products(4).
12. Whereas it is essential, in order to    12. Unchanged.
    facilitate the free movement of
    goods, to ensure that registered
    design rights confer upon the right
    holder the same protection in all
    Member States and that this
    protection is identical to the
    protection afforded by the
    registered Community design;
                                            12a Whereas protection should not be
                                                extended to those component parts
                                                which are not visible during
                                                normal use of a product, or to
                                                those features of such part which
                                                are invisible when the part is
                                                mounted, or which would not, in
                                                themselves, fulfil the requirements
                                                as to novelty and individual
                                                character; whereas features of
                                                design which are excluded from
                                                protection for these reasons should
                                                not be taken into consideration for
                                                the purpose of assessing whether
                                                other features of the design fulfil
                                                the requirements for protection;
(4)                                         (4)
     O J N o L 2 4 , 27.1.1987, p. 36.           Unchanged.
                                         16
 ---pagebreak---       Original proposal                               Amended proposal
13. Whereas, in conformity with the         13. Whereas technological innovation
    applicable provisions on the                should not be hampered by
    Community design, the                       granting design protection to
    interoperability of products of             features dictated solely by a
    different makes should not be               technical function; whereas it is
    hindered by extending the                   understood that this does not mean
    protection to the design of                 that a design must have an
    mechanical fittings;                        aesthetic quality; whereas,
                                                likewise, the interoperability of
                                                products of different makes should
                                                not be hindered by extending
                                                protection to the design of
                                                mechanical fittings; whereas
                                                features of a design which are
                                                excluded from protection for these
                                                reasons should not be taken into
                                                consideration for the purpose of
                                                assessing whether other features of
                                                the design fulfil the requirements
                                                for protection;
14. Whereas the mechanical fittings of      14. Unchanged.
    modular products may nevertheless
    constitute an important element of
    the innovative characteristics of
    modular products and present a
    major marketing asset and
    therefore should be eligible for
    protection;
15. Whereas it is fundamental for the        5. Unchanged.
    functioning of the internal market
    to unify the term of protection
    afforded by registered design rights
    in conformity with the solution
    adopted for the registered
    Community design;
                                         17
 ---pagebreak---           Original proposal                         Amended proposal
16. Whereas the legal protection of        16. Unchanged.
    design might in certain
    circumstances allow the creation of
    monopolies in generic products and
    captive markets by improperly
    binding consumers to a specific
    make of product, and thus the
    introduction of a provision is
    necessary in order to make the
    reproduction of designs applied to
    parts of complex products possible
    for repair purposes under very
    specific conditions;
                                           16a Whereas the limitation in the
                                               exercise of the rights provided for
                                               in the context of the use of
                                               designs for repair purposes should
                                               be compensated by a fair and
                                               reasonable remuneration, to be
                                               calculated primarily on the basis
                                               of the relevant design
                                               development costs;
                                           16b Whereas the exercise of the rights
                                               of a third party to reproduce parts
                                               for repair purposes should not be
                                               made conditional upon agreement
                                               as to the level of remuneration;
                                           16c Whereas the use of a design
                                               under the "repair clause" should
                                               not create a legal link between
                                               the right holder and the third
                                               party using the design; whereas
                                               the remuneration to be paid
                                               should not entail an obligation on
                                               the right holder to transfer know-
                                               how and shall not imply that the
                                               right holder is considered to be
                                               the manufacturer of a reproduced
                                               part as regards, for example, rules
                                               or agreements regarding product
                                               liability, warranty obligations or
                                               product safety requirements.
                                        18
 ---pagebreak---         Original proposal                              Amended proposal
                                            16d Whereas, in order to prevent a
                                                 partitioning of the Community
                                                 market, as regards Community
                                                 exhaustion of rights, use of the
                                                 design right by a third party
                                                 against payment to the right
                                                 holder should have the same
                                                 effect as the marketing of a
                                                 product with the consent of the
                                                 right holder;
                                            16e Whereas, in order to reinforce
                                                 effective action against the
                                                 infringement of design rights, it is
                                                 important that judicial authorities
                                                 be entitled to issue orders
                                                 permitting the right holder to
                                                 obtain relevant information
                                                 concerning the production and
                                                 distribution of infringing
                                                 products; whereas any effective
                                                 fight against product
                                                 counterfeiting makes it necessary
                                                 to provide that this remedy is to
                                                 be available by court order, where
                                                  appropriate, even before final
                                                 judgment in an infringement case.
17. Whereas the provisions of this           17.  Unchanged.
    Directive are without prejudice to
    the application of the competition
    rules under Articles 85 and 86 of
    the Treaty;
18. Whereas the grounds for refusal of       18   Unchanged
    registration in those Member States
    which provide for substantive
    examination of applications prior to
    registration, and the grounds for
    the invalidation of registered
    design rights in all the Member
    States, must be exhaustively
    enumerated,
                                         19
 ---pagebreak---           Original proposal                       Amended proposal
HAVE ADOPTED THIS                          HAVE ADOPTED THIS
DIRECTIVE:                                 DIRECTIVE:
                Article 1                                  Article 1
                                                          Definitions
For the purpose of this Directive:         For the purpose of this Directive:
(a) "design" means the appearance of       (a) "design" means the outwardly
    the whole or a part of a product           visible appearance of the whole or
    resulting from the specific features       a part of a product resulting from
    of the lines, contours, colours,           the features of, in particular, the
    shape and/or materials of the              lines, contours, colours, shape,
    product itself and/or its                  texture and/or materials of the
    ornamentation;                             product itself and/or its
                                                ornamentation;
(b) "product" means any industrial or      (b) "product" means any industrial or
    handicraft item, including parts            handicraft item, including parts
    intended to be assembled into a             intended to be assembled into a
    complex item, sets or compositions          complex product, packaging, get-
     of items, packaging, get-ups,             up, graphic symbols and
    graphic symbols and typographic             typographic typefaces, but
    typefaces, but excluding a                  excluding computer programs.
     computer program.
                 Article 2                                  Article 2
                                                     Scope of application
This Directive shall apply to:                  This Directive shall apply to:
(a) design rights registered with the           (a)   Unchanged.
     central industrial property offices
     of the Member States;
(b) design rights registered at the             (b)   Unchanged.
     Benelux Design Office;
(c) design rights registered under              (c)   Unchanged.
     international arrangements which
     have effect in a Member State;
(d) applications for design rights               (d)  Unchanged.
     referred to under (a) to (c).
                                         20
 ---pagebreak---        Original proposal                            Amended proposal
                                            2. The publication by an industrial
                                               property office of a Member State
                                               of a design filed with that office
                                               shall, for the purpose of this
                                               Directive, be considered to be a
                                               registration.
               Article 3                                    Article 3
                                                  Protection requirements
1. Member States shall protect the          1. Unchanged.
   designs upon registration, by
   conferring exclusive rights in
   accordance with the provisions of
   the Directive.
2. A design shall be protected by a            Unchanged.
   design right to the extent that it is
   new and has an individual
   character.
3. A design of a product which              3. A design of a product which
   constitutes a part of a complex             constitutes a component part of a
   item shall only be considered to be         complex product shall only be
   new and to have an individual               considered to be new and to have
   character in so far as the design           an individual character:
   applied to the part as such fulfils
   the requirement as to novelty and
   individual character.
                                               (a)    if the component part, when
                                                      incorporated into the
                                                      complex product, remains
                                                      visible during normal use of
                                                      the latter, and
                                               (b)    to the extent that the visible
                                                      features of the component
                                                      part fulfil in themselves the
                                                      requirement as to novelty and
                                                      individual character.
                                         21
 ---pagebreak---           Original proposai                            Amended proposal
                                                 "Normal use" within the meaning
                                                 of paragraph (3) (a) shall mean use
                                                 by the end user and shall not
                                                 include maintenance, servicing or
                                                 repair.
               Article 4                                      Article 4
                                                              Novelty
1. A design shall be considered new         A design shall be considered new if no
   if no identical design has been          identical design has been made
   made available to the public before      available to the public before the date
   the date of filing the application       of filing the application for registration
   for registration, or if a priority is    or, if priority is claimed, the date of
   claimed, the date of priority,           priority. Designs shall be deemed to be
   designs shall be deemed to be            identical if their features differ only in
   identical if their specific features     immaterial details.
   differ only in immaterial details.
2. A design shall be deemed to have         2.   Deleted.
   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.
                                         22
 ---pagebreak---             Original proposal                            Amended proposal
                 Article 5                                     Article 5
                                                        Individual character
1.  A design shall be considered to           1.  A design shall be considered to
    have an individual character if the           have an individual character if the
    overall impression it produces on             overall impression it produces on
    the informed user differs                     the informed user differs from the
    significantly from the overall                overall impression produced on
    impression produced on such a user            such a user by any design which
    by any design referred to in                  has been made available to the
    paragraph (2).                                public before the date of filing of
                                                 the application for registration, or,
                                                  if priority is claimed, the date of
                                                 priority.
   To be considered for the purpose           2.  Deleted.
   of application of paragraph (1) a
   design must be:
   (a) commercialised in the market
         place, whether in the
         Community or elsewhere, at
         the date of filing the
         application for registration or,
         if a priority is claimed, at the
         date of priority, or
   (b) published following
         registration as a registered
         Community design or a design
         right of the Member State in
         question, the protection of
        which has not expired at the
         date of filing the application or
         registration or, if a priority is
         claimed, at the date of priority.
   In order to assess individual                 In order to assess individual
   character, common features shall as           character, the degree of freedom of
   a matter of principle be given more           the designer in developing the
   weight than differences and the               design shall be taken into
   degree of freedom of the designer             consideration.
   in developing the design shall be
   taken into consideration.
                                           23
 ---pagebreak---           Original proposal                           Amended proposal
               Article 6                                    Article 6
                                                           Disclosure
1. If a design for which protection is      1. For the purpose of applying
   claimed under a registered design           Articles 4 and 5, a design shall be
   right of a Member State has been            deemed to have been made
   made available to the public by the         available to the public if it has
   designer or his successor in title or       been published following
   by a third person as a result of            registration or otherwise, or
   information provided or action              exhibited, used in trade or
   taken by the designer or his                otherwise disclosed, except where
   successor in title or as a                  these events could not reasonably
   consequence of an abuse in relation         have become known in the normal
   to the designer or his successor in         course of business to the circles
   title during the 12-month period            specialised in the sector concerned,
   preceding the date of the filing of         operating within the Community
   the application or, if a priority is        before the date of filing of the
   claimed, the date of priority, such a       application for registration or, if
   disclosure shall not be taken into          priority is claimed, the date of
   consideration for the purpose of            priority.
   applying Articles 4 and 5.
                                               The design 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.
2. The provisions of paragraph (1)          2. Disclosure shall not be taken into
   shall not apply if the subject of the       consideration for the purpose of
   abusive disclosure is a design              applying Articles 4 and 5 if a
   which has resulted in a registered          design for which protection is
   Community design or a registered            claimed under a registered design
   design right of the Member State            right of a Member State has been
   concerned.                                  made available to the public:
                                               (a) by the designer, his successor
                                                    in title, or a third person as a
                                                    result of information provided
                                                    or action taken by the
                                                    designer, or his successor in
                                                    title; and
                                         24
 ---pagebreak---            Original proposal                             Amended proposal
                                                 (b) during the 12-month period
                                                      preceding the date of the filing
                                                      of the application or, if
                                                      priority is claimed, the date of
                                                      priority.
                                            3.   The provisions of 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, as a
                                                 result of the abusive conduct, a
                                                 Registered Community Design or a
                                                 registered design right of the
                                                 Member State concerned has come
                                                 into existence.
                Article 7                                     Article 7
                                               Designs dictated by their technical
                                                     function and designs of
                                                         interconnections
1. A design right shall not subsist in a    1.   A design right shall not subsist in
   design to the extent that the                 features of appearance of a product
   realisation of a technical function           which are solely dictated by its
   leaves no freedom as regards                  technical function.
   arbitrary features of appearance.
2. A design right shall not subsist in a    2.   A design right shall not subsist in
   design to the extent that it must             features of appearance of a product
   necessarily be reproduced in its              which must necessarily be
   exact form and dimensions in order            reproduced in their exact form and
   to permit the product in which the            dimensions in order to permit the
   design is incorporated or to which            product in which the design is
   it is applied to be mechanically              incorporated or to which it is
   assembled or connected with                   applied to be mechanically
   another product.                              connected or placed in, around or
                                                 against another product so that
                                                 either product may perform its
                                                 function.
                                         25
 ---pagebreak---           Original proposal                            Amended proposal
3.  Notwithstanding paragraph 2, a           3.   Unchanged.
     design right shall under the
     conditions set out in Articles 4
     and 5 subsist in a design serving
    the purpose of allowing
     simultaneous and infinite or
     multiple assembly or connection of
    identical or mutually
    interchangeable products within a
    modular system.
                 Article 8                                    Article 8
                                              Designs contrary to public policy or
                                                              morality
A design right shall not subsist in a        A design right shall not subsist in a
design the exploitation or publication of    design which is contrary to public
which is contrary to public policy or to     policy or to the accepted principles of
the accepted principles of morality.         morality.
                 Article 9                                    Article 9
                                                        Scope of Protection
1.   The scope of the protection             1.   The scope of the protection
     conferred by a design right shall            conferred by a design right shall
     include any design which produces            include any design which does not
     on the informed user a significantly         produce on the informed user a
     similar overall impression.                  different overall impression.
2.   In order to assess the scope of         2.   In order to assess the scope of
     protection, common features shall            protection, the degree of freedom
     as a matter of principle be given            of the designer in developing his
     more weight than differences and             design shall be taken into
     the degree of freedom of the                 consideration.
     designer in developing his design
     shall be taken into consideration.
                                          26
 ---pagebreak---              Original proposal                           Amended proposal
                 Article 10                                   Article 10
                                                        Term of protection
Upon registration a design which meets        Unchanged.
the requirements under Article 3(2)
shall be protected by a design right for
a period of five years from the date of
filing the application. The term of
protection may be renewed for periods
of five years each, up to a total term
of 25 years from the date of filing.
                 Article 11                                   Article 11
                                               Invalidity or refusal of registration
1.   A design is excluded from                1.  A design may only be refused
     registration, or if registered may be        registration, or, if registered,
     declared invalid, only in the                declared invalid, in the following
     following cases:                             cases:
     (a) if the design does not fulfil            (a) if it is not a design within the
          the requirements under                       meaning of Article 1, or if it
          Article 3(2), or                             does not fulfil the
                                                       requirements under Article 3,
                                                       or
     (b) where its specific technical             (b) if its technical and/or
          and/or interconnecting features              interconnecting features are
          are not eligible for protection              not eligible for protection
          under Article 7(1) or (2), or                under Article 7(1) or (2), or
     (c) to the extent that its                   (c) if it is contrary to public
          exploitation or publication is               policy or to accepted
          contrary to public policy or to              principles of morality, or
          accepted principles or morality,
          or
     (d) if the applicant for or the              (d) if the applicant for or the
          holder of the design right is                holder of the design right is
          not entitled to it under the law             not entitled to it under the law
          of the Member State                          of the Member State
          concerned.                                   concerned, or
                                           27
 ---pagebreak--- Original proposal          Amended proposal
                     (e) if a distinctive sign is used in
                         a subsequent design, and
                         Community law or the law of
                         the Member State governing
                         that sign confers on the right
                         holder of the sign the right to
                         prohibit such use, or
                     (f) if the design constitutes an
                         unauthorised use of a work
                         protected under the copyright
                         law of the Member State
                         concerned, or
                     (g) if the design constitutes an
                         improper use of any of the
                         items listed in Article 6ter of
                         the Paris Convention for the
                         Protection of Industrial
                         Property, or of badges,
                         emblems and escutcheons
                         other than those covered by
                         Article 6,erof the said
                         Convention and which are of
                         particular public interest in the
                         Member State concerned, or
                     (h) if a conflicting design which
                         has been made available to the
                         public after the date of the
                         filing of the application or, if
                         priority is claimed, the date of
                         priority, is protected from a
                         date prior to the said date by a
                         registered Community design
                         or a design right of the
                         Member State concerned, or
                         by an application for such a
                         right.
                  28
 ---pagebreak---           Original proposal                           Amended proposal
2. A design right may also be               2.  If the ground for invalidity or for
   declared invalid if a conflicting            refusal of registration applies only
   design which has been made                   to some of the features of the
   available to the public after the            design, it may be registered or
   date of the filing of the application        maintained in an amended form.
   or, if a priority is claimed, the date
   of priority, is protected from a date
   prior to the said date by a
   registered Community design or a
   design right of the Member State
   concerned, or by an application for
   such a right.
3. Any Member State may provide             3.   Unchanged.
   that, by way of derogation from the
   preceding paragraphs, the grounds
   for refusal of registration or for
   invalidation in force in that State
   prior to the date on which the
   provisions necessary to comply
   with this Directive enter into force,
    shall apply to design rights for
   which application has been made
    prior to that date.
                                             4.  A design right may be declared
                                                 invalid even after it has lapsed or
                                                 has been surrendered.
                                          29
 ---pagebreak---            Original proposal                      Amended proposal
               Article 12                              Article 12
                                                   Rights conferred
                                                  by the design right
1. Upon registration a design right         Upon registration, a design right
   shall confer on its holder the           shall confer on its holder the
   exclusive right to use the design        exclusive right to use the design
   and to prevent any third party not       and to prevent any third party not
   having his consent from using a          having his consent from copying it,
   design included within the scope of      or from using a design included
   protection of the design right. The      within the scope of protection of
   aforementioned use shall cover, in       the design right. The
   particular, the making, offering,        aforementioned use shall cover, in
   putting on the market or using of a      particular, the making, offering,
   product in which such a design is        putting on the market or using of a
   incorporated or to which it is           product in which such a design is
   applied, or from importing,              incorporated or to which it is
   exporting or stocking such a             applied, or, importing, exporting or
   product for those purposes.              stocking such a product for those
                                            purposes.
   Where, under the law of a                Unchanged.
   Member State, acts referred to in
   paragraph 1 could not be prohibited
   before the date on which the
   provisions necessary to comply
   with this Directive entered into
   force, the rights conferred by the
   design right may not be relied on
   to prevent continuation of such
   acts.
               Article 13                               Article 13
                                                Limitation of the rights
                                            conferred by the design right
1. The rights conferred by a design       1  Unchanged.
   right upon registration shall not
   extend to:
   (a) acts done privately and for          (a) Unchanged.
         non-commercial purposes;
   (b) acts done for experimental           (b) Unchanged.
         purposes;
                                       30
 ---pagebreak---               Original proposai                        Amended proposal
      (c) acts of reproduction for the           (c) Unchanged.
           purposes of making citations
           or of teaching, provided that
           such acts are compatible with
           fair trade practice and do not
           unduly prejudice the normal
           exploitation of the design, and
           that mention is made of the
           source.
2.    In addition, the rights conferred by    2.  Unchanged.
      a design right upon registration
      shall not extend to:
      (a) the equipment on ships and
           aircraft registered in another
           country when these
           temporarily enter the territory
           of the Member State
           concerned;
      (b) the importation in the Member
           State concerned of spare parts
           and accessories for the purpose
           of repairing such craft;
      (c) the execution of repairs on
           such craft.
                  Article 14                                Article 14
                                               Use of a design for repair purposes
The rights conferred by a design right        1   By way of derogation from
shall not be exercised against third             Article 12, the rights conferred by
parties who, after three years from the          a design right shall not be
first putting on the market of a product         exercised against third parties who
incorporating the design or to which the         use the design, provided that:
design is applied, use the design under
Article 12, provided that:
                                           31
 ---pagebreak---            Original proposal                       Amended proposal
(a) the product incorporating the            (a) the product incorporating the
    design or to which the design is             design or to which the design
    applied is a part of a complex               is applied is a component part
    product upon whose appearance the            of a complex product upon
    protected design is dependent;               whose appearance the
                                                 protected design is dependent;
                                                 and
(b) the purpose of such a use is to          (b) the purpose of such a use is to
    permit the repair of the complex             permit the repair of the
    product so as to restore its original        complex product so as to
    appearance; and                              restore its original appearance;
                                                 and
(c) the public is not misled as to the       (c) the public is informed as to
    origin of the product used for the           the origin of the product used
    repair.                                      for the repair by the use of an
                                                 indelible marking, such as a
                                                 trademark or a trade name, or
                                                 in another appropriate form;
                                                 and
                                             (d) the third party has:
                                                 (i)    notified the right holder
                                                        of the intended use of the
                                                        design;
                                                  (ii)  offered the right holder a
                                                        fair and reasonable
                                                        remuneration for that use;
                                                        and
                                                  (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.
                                          32
 ---pagebreak--- Original proposal              Amended proposal
                     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.
                     3. In calculating the remuneration, the
                        investment made in development
                        of the relevant design shall be the
                        primary basis for consideration.
                     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.
                     5. No later than five years after the
                         implementation date specified in
                         Article 19, the Commission shall
                         submit an analysis of the
                         consequences of the provisions of
                         this Article for the Community
                         industrial sectors most affected,
                         and in particular for manufacturers
                         of complex products such as motor
                         vehicles and producers of spare
                         parts. If necessary, it shall propose
                         to the European Parliament and the
                         Council changes to this Article,
                         after consulting the
                         abovementioned sectors.
                  33
 ---pagebreak---             Original proposal                           Amended proposal
                Article 15                                  Article 15
                                                            Exhaustion
The rights conferred by a design right      The rights conferred by a design right
upon registration shall not extend to       upon registration shall not extend to
acts relating to a product in which a       acts relating to a product in which a
design included within the scope of         design included within the scope of
protection of the design right is           protection of the design right is
incorporated or to which it is applied,     incorporated or to which it is applied,
when the product has been put on the        when the product has been put on the
market in the Community by the holder       market in the Community by the holder
of the design right or with his consent.    of the design right, with his consent, or
                                            in accordance with the provisions of
                                            Article 14.
                Article 16                                   Article 16
A design right may be declared invalid      Deleted.
even after it has lapsed or has been
surrendered.
                                                            Article 16a
                                                       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:
                                                 (a) has been found in possession,
                                                       for commercial purposes, of
                                                       such goods, or
                                         34
 ---pagebreak--- Original proposal               Amended proposal
                        (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.
                    2.  The information referred to under
                        paragraph 1 shall comprise.
                        (a) the names and addresses of
                              producers, suppliers and other
                              prior possessors of the product
                              and of commercial recipients
                              or outlets, as well as
                         (b) information on the quantity of
                              goods which have been
                              produced, delivered, received
                              or commissioned.
                     3.  Paragraphs 1 and 2 shall be
                         without prejudice to other
                         provisions:
                         (a) granting the right holder more
                               far reaching rights to
                               information;
                          (b) governing the use of
                               information provided under
                               this Article, in penal or civil
                               procedures;
                          (c) governing liability for the
                               abuse of a right to
                               information; or
                          (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.
                  35
 ---pagebreak---              Original proposal                            Amended proposal
                 Article 17                                    Article 17
                                                    Relationship to other forms of
                                                               protection
The provisions of this Directive shall         The provisions of this Directive shall
be without prejudice to any legal              be without prejudice to any provisions
provisions of the Community or of the          of Community law or of the law of the
Member State concerned relating to             Member State concerned relating to
unregistered design rights, trademarks         unregistered design rights, trademarks
or other distinctive signs, patents and        or other distinctive signs, patents and
utility models, typefaces, civil liability,    utility models, typefaces, civil liability,
or unfair competition.                         or unfair competition.
                  Article 18                                   Article 18
                                                       Relationship to copyright
      Pending further harmonisation of         A design protected by a design right
      the laws of copyright of the             registered in, or in respect of, a
      Member States, a design protected        Member State in accordance with this
      by a design right registered in or       Directive shall also be eligible for
      for a Member State in accordance         protection under the law of copyright
      with this Directive shall also be        of that State as from the date on which
      eligible for protection under the        the design was created or fixed in any
      law of copyright of that State as        form. The extent to which, and the
      from the date on which the design        conditions under which, such a
      was created or fixed in any form,        protection is conferred, including the
      irrespective of the number of            level of originality required, shall be
      products in which such design is         determined by each Member State.
      intended to be incorporated or to
      which it is intended to be applied
      and irrespective of whether the
      design can be dissociated from the
      products in which it is intended to
      be incorporated or to which it is
      intended to be applied. 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.
                                            36
 ---pagebreak---            Original proposal                          Amended proposal
   Pending further harmonisation of         Deleted.
   the laws of copyright of the
   Member States, each Member State
   shall admit to the protection under
   its law of copyright a design
   protected by a design right
   registered in or for this State which
   fulfils the conditions required
   under such law, even if, in another
   Member State which is the country
   of origin of the design, the latter
   does not fulfil the conditions for
   protection under the law of
   copyright in that State.
               Article 19                                  Article 19
                                                         Implementation
   Member States shall bring into           1.  Member States shall bring into
   force the laws, regulations or               force the laws, regulations or
   administrative provisions necessary          administrative provisions necessary
   to comply with this Directive                to comply with this Directive
   by 31 October 1996.                          by 1 January 1998.
   When Member States adopt these               When Member States adopt these
   measures, these shall contain a              provisions, these shall contain a
   reference to the Directive or shall          reference to this Directive or shall
   be accompanied by such reference             be accompanied by such reference
   at the time of their official                at the time of their official
   publication. The procedure for such          publication. The procedure for
   reference shall be adopted by                such reference shall be adopted by
   Member States.                               Member States.
2. Member States shall communicate          2.  Unchanged.
   to the Commission the provisions
   of national law which they adopt in
   the field governed by this
   Directive.
                                         37
 ---pagebreak---           Original proposal                   Amended proposal
               Article 20                           Article 20
                                                Entry into force
This Directive is addressed to the
Member States.                      This Directive shall enter into force on
                                    the twentieth day following that of its
                                    publication in the Official Journal of
                                    the European Communities.
                                                    Article 21
                                                   Addressees
                                     This Directive is addressed to the
                                     Member States.
Done at Brussels,
For the European Parliament                           For the Council
The President                                         The President
                                   38
 ---pagebreak---                                                                    ISSN 0254-1475
                                                             COM(96) 66 final
                                              DOCUMENTS
EN                                                                            08
                                     Catalogue number : CB-CO-96-079-EN-C
                                                             ISBN 92-78-00777-3
Office for Official Publications of the European Communities
L-2985 Luxembourg
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