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(31) The exclusive rights conferred by a registered design right should be subject to an appropriate set of limitations. Apart from acts carried out privately and for non-commercial purposes and those carried out for experimental purposes, such list of permissible uses should include acts of reproduction for the purpose of making citations or of teaching, referential use in the context of comparative advertising, and use for the purpose of comment, critique or parody, provided that those acts are compatible with fair trade practices and do not unduly prejudice the normal exploitation of the design. Use of a design by third parties for the purpose of artistic expression should be considered as to be fair as long as it is in accordance with honest practices in industrial and commercial matters. Furthermore, this Directive should be applied in a way that ensures full respect of fundamental rights and freedoms, in particular the freedom of expression.

(33) The differences in the laws of the Member States on the use of protected designs for the purpose of permitting the repair of a complex product so as to restore its original appearance, where the product incorporating the design or to which the design is applied constitutes a form-dependent component part of a complex product, directly affect the establishment and functioning of the internal market. Such differences distort competition and trade within the internal market and create legal uncertainty. The repairability of products is at the core of a sustainable economy, as highlighted in the Commission communication of 11 December 2019 on ‘The European Green Deal’.

(34) It is therefore necessary for the smooth functioning of the internal market and in order to ensure fair competition to approximate the design protection laws of Member States as regards the use of protected designs for the purpose of permitting the repair of a complex product so as to restore its original appearance through the insertion of a ‘repair clause’ similar to that already contained in Regulation (EC) No 6/2002 and applicable to EU designs at Union level but explicitly applying to form-dependent component parts of complex products only. As the intended effect of that repair clause is to make design rights unenforceable where the design of the component part of a complex product is used for the purpose of the repair of a complex product so as to restore its original appearance, the repair clause should be one of the defences provided for under this Directive to design right infringement. In addition, in order to ensure that consumers are not mislead and are able to make an informed decision between competing products that can be used for the repair, it should be explicitly provided for that the repair clause cannot be invoked by a manufacturer or seller of a component part who has failed to duly inform consumers about the commercial origin, and the identity of the manufacturer, of the product to be used for the purpose of the repair of the complex product. That detailed information should be provided through a clear and visible indication on the product or, where that is not possible, on its packaging or in a document accompanying the product, and should include at least the trade mark under which the product is marketed, and the name of the manufacturer.

(35) With a view to preserving the effectiveness of the liberalisation of the spare parts aftermarket sought by this Directive and in line with the case law of the Court of Justice of the European Union, in order to be able to benefit from the repair clause exemption from design protection, the manufacturer or seller of a component part of a complex product is under a duty of diligence to ensure, through appropriate means, in particular contractual means, that downstream users do not intend to use the component parts at issue for purposes other than that of repair so as to restore the original appearance of the complex product. This however should not require the manufacturer or seller of a component part of a complex product to guarantee, objectively and in all circumstances, that the parts they make or sell are, ultimately, actually used by end users for the sole purpose of repair so as to restore the original appearance of that complex product.

(36) In order to avoid divergent conditions in the Member States regarding prior use causing differences in the legal strength of the same design in different Member States, it is appropriate to ensure that any third person who can establish that, before the date of filing of a design application, or, if priority is claimed, before the date of priority, that third person has in good faith commenced use within a Member State, or has made serious and effective preparations to that end, of a design included within the scope of protection of a registered design right, which has not been copied from the latter, is entitled to a limited exploitation of that design.

(37) In order to facilitate the marketing of design-protected products, in particular by SMEs and individual designers, and to increase awareness of the design registration regimes existing both at Union and national level, a commonly accepted notice consisting of the symbol D should be available for use by design right holders and others with their consent.

(38) In order to improve and facilitate access to design protection and to increase legal certainty and predictability, the procedure for the registration of designs in the Member States should be efficient and transparent and should follow rules similar to those applicable to EU designs.

(39) It is necessary to lay down essential common rules regarding the requirements and technical means for the representation of designs in any form of visual reproduction at the stage of filing the application for registration, taking into account technical advances in relation to the visualisation of designs and the needs of Union industry in relation to new digital designs. In addition, Member States should establish harmonised standards by means of convergence of practices.

(40) For greater efficiency it is also appropriate to allow applicants for registered designs to combine several designs in one multiple application without being subject to the condition that the products in which the designs are intended to be incorporated or to which they are intended to be applied all belong to the same class of the International Classification for Industrial Designs (‘Locarno Classification’), established by the Locarno Agreement (1968).

(41) The usual publication following registration of a design could in some cases destroy or jeopardise the success of a commercial operation involving the design. The facility of a deferment of publication affords a solution in such cases. For the sake of coherence and greater legal certainty, thereby helping businesses reduce costs in managing design portfolios, deferment of publication should be subject to the same rules across the Union.

(42) In order to ensure a level playing field for businesses, and provide the same level of access to design protection across the Union by keeping the registration and other procedural burdens for applicants to a minimum, all central industrial property offices of the Member States and the Benelux Office for Intellectual Property should limit, as the European Union Intellectual Property Office (EUIPO) does at Union level, their substantive examination of their own motion to the absence of the grounds for non-registrability exhaustively enumerated in this Directive.

(43) For the purpose of offering another means of declaring design rights invalid, Member States should be allowed to provide for an administrative procedure for the declaration of invalidity which is aligned to the extent appropriate to that applicable to registered EU designs.

(44) It is desirable that Member States’ central industrial property offices and the Benelux Office for Intellectual Property cooperate with each other and with the EUIPO in all fields of design registration and administration in order to promote the convergence of practices and tools, such as the creation and updating of common or connected databases and portals for consultation and search purposes. The Member States should further ensure that their central industrial property offices and the Benelux Office for Intellectual Property cooperate with each other and with the EUIPO in all other areas of their activities which are relevant for the protection of designs in the Union.

(45) Since the objectives of this Directive, namely to foster and create a well-functioning internal market and to facilitate the registration, administration and protection of design rights in the Union to the benefit of growth and competitiveness where appropriate, cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

(46) The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council .

(47) The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive amendment as compared with Directive 98/71/EC. The obligation to transpose the provisions which are unchanged arises under that earlier Directive.