·Baseline – no change: Current rules and procedures continue.
As to spare parts protection, there are 3 policy options as follows:
·Option 1.1 – Full liberalisation for all designs: The market of ‘must-match’ spare parts should be opened for competition in the entire EU, extending it to both existing and new designs.
·Option 1.2 – Instant full liberalisation for new designs followed by full liberalisation for old designs after a transitional 10-year period: As option 1.1 but designs already granted before the entry into force of the new act would continue to be protected for a transitional period of 10 years.
·Option 1.3 – Full liberalisation for new designs only: Designs already granted before entry into force would not be affected and allowed to be protected for maximum term of 25 years.
As for the complex RCD procedures, there is one (unanimously supported) option:
·Option 2 - Simplification and streamlining of RCD procedures, such as by modernising the requirements for design representation and facilitating the filing of multiple applications by abolishing the ‘unity-of-class’ requirement.
As for the sub-optimal RCD fees, there is 1 option with 2 sub-options:
·Option 3 - Lower RCD registration fee and easier multiple applications: This model allows easier access to RCD protection, in particular for SMEs (cheaper acquisition of the right and first renewal), while discouraging companies from maintaining non-utilised designs in the register by increasing the fees for subsequent renewals.
Sub-option 3.1: the registration fee for a single RCD is reduced from EUR 350 to EUR 250. For each additional design forming part of a multiple application, the fee is reduced to EUR 125. The fee for first renewal is EUR 70; for second renewal EUR 140; for third renewal EUR 280; for fourth renewal EUR 560.
Sub-option 3.2: the registration fee is also EUR 250 but each additional design of a multiple application is further discounted to EUR 100. All renewal fees are higher than under the current system. The fee for first renewal is EUR 80; for second renewal EUR 160; for third renewal EUR 320; for fourth renewal EUR 640.
As for the divergent rules at national level, there are 2 options:
·Option 4.1: Partial further alignment of national laws, bringing increased consistency with the RCD system. This option involves adding provisions to the Design Directive on selected design law aspects that it does not yet address and which have been identified by stakeholders as being in greatest need of alignment (in particular concerning procedures) with the Community Design Regulation.
·Option 4.2: Full alignment of national design laws and procedures. This approach would be based on Option 4.1, encompassing its above components, but include all remaining aspects of substantive design law and procedures which are part of the Community Design Regulation but not the Design Directive.
A combination of options including option 1.2, option 2, option 3.1 and option 4.1 are preferred.
Option 1.2 is considered to be the most proportional one to achieve complete alignment in the single market on the principle of liberalisation. It is in line with the spirit of the transitory spare parts regime in the Design Directive, aiming at complete liberalisation of the spare parts market in the EU.
This option also is in line with the Commission’s intention in the previous proposal in 2004 as well as consistent with and complementary to Regulation (EU) 461/2010 (the Motor Vehicle Block Exemption Regulation or MVBER) in the antitrust field. Liberalisation of the spare parts market would help that antitrust regime to achieve its full benefits for enterprises and consumers in the automotive aftermarket.
Finally, option 1.2 is consistent with and complements efforts put forward in the Sustainable Product Initiative that aims at promoting repairs and the circular economy, and is in line with the international Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
Option 2 together with option 3.1 would make RCD protection more accessible and affordable for businesses (keeping pace with technological progress) and promises to involve significant positive impacts and clear benefits for businesses, in particular SMEs and individual designers.
Option 4.1, in particular by adding principal procedural rules to the Design Directive, in alignment with the Community Design Regulation, would make it easier and less costly for firms and designers to obtain design protection across Member States, including through combined use of national and RCD systems.
This option would also positively influence cooperation between the EUIPO and national IP offices in terms of facilitating increasing convergence of practices and developing common tools for new areas where alignment is desirable (e.g. invalidation of designs). This promises to generate further net benefits for users of the design protection systems while improving their complementarity and interoperability.
Analysis and past experience with voluntary approaches has led the Commission to conclude that all the preferred options should be implemented via legislative changes to the Design Directive and the Community Design Regulation.
|