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(1) Council Regulation (EC) No 6/2002 created a system of design protection specific to the European Community which has since then provided for the protection of designs at Union level in parallel to the protection of designs available at national level in Member States in accordance with their national law on design protection, harmonised pursuant to Directive 98/71/EC of the European Parliament and of the Council .

(2) In line with its Communication of 19 May 2015 entitled ‘Better Regulation for better results – An EU agenda’ and its commitment to review Union policies regularly, the Commission carried out an extensive evaluation of the design protection systems in the Union, involving a comprehensive economic and legal assessment, supported by a series of studies.

(3) In its conclusions of 10 November 2020 on intellectual property policy and the revision of the industrial design system in the Union, the Council called on the Commission to present proposals for the revision of Regulation (EC) No 6/2002 and Directive 98/71/EC. The revision was requested to modernise the protection systems relating to industrial designs in the Union and to make design protection more attractive for individual designers and businesses, especially small and medium-sized enterprises (SMEs).

(4) Since the establishment of the Community design system, experience has shown that individual designers and undertakings from within the Union and from third countries have accepted the system and it has become a successful and viable complement or alternative to the protection of designs at the national level of the Member States.

(5) In its resolution of 11 November 2021 on an intellectual property action plan to support the EU’s recovery and resilience , the European Parliament pointed out that the current EU design protection system was set up 20 years ago and should be revised, highlighting the need to update it in order to ensure greater legal certainty, thus echoing the call of the Council to present proposals for the revision of Regulation (EC) No 6/2002 and Directive 98/71/EC.

(6) National design protection systems continue nevertheless to be necessary for those individual designers and undertakings that do not want protection of their designs at Union level, or are unable to obtain Union-wide protection, even though they do not face any obstacles for obtaining national protection. It should be left to each person seeking design protection to decide what kind of protection they wish to obtain, be it a national design right in one or more Member States, an EU design only, or both.

(7) While its evaluation of the Union’s legislation on design protection confirmed that it is still largely fit for purpose, the Commission announced in its communication of 25 November 2020 entitled ‘Making the most of the EU’s innovative potential – An intellectual property action plan to support the EU’s recovery and resilience’ that, following the successful reform of the EU trade mark legislation, it would revise the Union legislation on design protection with a view to simplifying the system and making it more accessible and efficient, and with a view to updating the regulatory framework in light of developments in relation to new technologies on the market.

(8) In parallel with the improvements and amendments to the EU design system, national design laws and practices should be further harmonised and brought into line with the EU design system to the extent appropriate, in order to create, as far as possible, equal conditions for the registration and protection of designs throughout the Union. This should be complemented by further efforts of the European Union Intellectual Property Office (EUIPO) (the ‘Office’), the central industrial property offices of the Member States and the Benelux Office for Intellectual Property to promote convergence of practices and tools in the field of designs under the cooperation framework laid down in Regulation (EU) 2017/1001 of the European Parliament and of the Council .

(9) It is necessary to adapt the terms used in Regulation (EC) No 6/2002 to the amendments introduced in the founding Treaties by the Treaty of Lisbon. This entails the replacement of ‘Community design’ by ‘European Union design’ (‘EU design’). In addition, the terms used in Regulation (EC) No 6/2002 need to be aligned with those of Regulation (EU) 2017/1001. This involves in particular the replacement of the name ‘Office for Harmonisation in the Internal Market (trade marks and designs)’ by ‘European Union Intellectual Property Office’.

(10) As a complement to the administration of the EU design system, it is essential that the Office adequately promote that system with a view to raising awareness and improving understanding of the possibility, value and benefits of obtaining and using design protection at Union level.

(11) Since the establishment of the Community design system, the rise of information technology has entailed the advent of new designs which are not embodied in physical products. That calls for a broadening of the definition of products eligible for design protection to clearly cover those embodied in a physical object, or visualised in a graphic, or that are apparent from the spatial arrangement of items intended to form an interior or exterior environment. In this context, it should be recognised that animation, such as movement or transition, of the features of a product can contribute to the appearance of designs, in particular designs that are not embodied in a physical object.

(12) In order to ensure legal certainty, it is appropriate to clarify that protection is conferred upon the right holder, by way of registration of an EU design, for those design features of a product, in whole or in part, which are shown visibly in an application for registration of such design and made available to the public by way of publication.

(13) Apart from being shown visibly in an application for registration of an EU design, design features of a product do not need to be visible at any particular time or in any particular situation of use in order to benefit from design protection. An exception to that principle applies to the design protection of component parts of a complex product that need to remain visible during normal use of that product.

(14) In view of the growing deployment of 3D printing technologies in different areas of industry, including with the help of artificial intelligence, as well as the resulting challenges for design right holders to effectively prevent illegitimate copying of their protected designs, it is appropriate to provide that the creation, downloading, copying and making available of any medium or software which records the design for the purpose of reproduction of a product that infringes the protected design, constitutes use of the design which should be subject to the right holder’s authorisation.

(15) In order to ensure design protection and combat counterfeiting effectively, and in line with international obligations of the Union under the framework of the World Trade Organization (WTO), in particular Article V to the General Agreement on Tariffs and Trade (GATT 1947) on freedom of transit, and, as regards generic medicines, the Doha Declaration on the TRIPS Agreement and Public Health, adopted by the WTO Ministerial Conference on 14 November 2001, the holder of a registered EU design should be entitled to prevent third parties from bringing products, in the course of trade, from third countries into the Union, without being released for free circulation there, where, without right holder’s authorisation, such products incorporate a design which is identical or essentially identical to the registered EU design or where a design is applied to those products which is identical or essentially identical to the registered EU design.

(16) To that end, it should be permissible for holders of registered EU designs to prevent the entry of infringing products and the placement of such products in all customs situations, also when such products are not intended to be placed on the market of the Union. In performing customs controls, the customs authorities should make use of the powers and procedures laid down in Regulation (EU) No 608/2013 of the European Parliament and of the Council , including at the request of the right holders. In particular, the customs authorities should carry out the relevant controls on the basis of risk analysis criteria.