Publications
European IP Bulletin, Issue 16, October - Hot Topics
Hot Topics
1. European Commission's Proposal to Amend Designs
In order to
increase competition, the European Commission has proposed to amend
Directive 98/71 on the legal protection of designs by
introducing a “repairs clause” and removing the Member States’
option of retaining design protection under national law for
“visible” replacement parts.
The amendment will mainly affect the auto industry’s spare parts
market as it will allow independent part manufacturers, not
linked to auto manufacturers, to compete throughout the EU
market for visible replacement parts, a market potentially worth
€10 billion annually. However, other sectors such as domestic
electrical appliances, sanitary appliances, motorbikes and
watches will also be affected.
The proposal came after the realisation that the current
situation, where nine Member States have opened up the spare
parts market but sixteen others continue to extend design
protection to visible spare parts, is unsatisfactory as it
divides and distorts the Internal Market. In the automotive
sector, there is a single market for new cars, but no single
market for their spare parts. The consequence being that
citizens are insecure as to whether or not, and in which Member
State, the purchase of unofficial spare parts is lawful. In
parts of the Community, they are also deprived of choosing
between competing spare parts. In addition, producers of
unapproved spare parts, especially Small and Medium Enterprises
(SMEs), cannot use the advantages of a single market and are
discouraged from generating investment and employment.
The aims of the proposal are therefore to harmonise the design
regime in order to complete the Internal Market through a
process of liberalisation, so as to increase competition and
offer consumers greater choice as to the source of spare parts
used for repair purposes.
The modification of the Directive will only affect external and
visible spare parts, such as bonnets, bumpers, doors, lamps,
radiator grilles, windscreens and wings, which are protected by
a design right based on novelty and individual character. Parts
that are not visible, on the other hand, like engine parts or
mechanical parts, are not covered by the amendment. In addition,
the modification does not concern component parts at the initial
manufacturing and production stage of a complex product, that is
the so-called “primary market”, but only the “secondary market”
or “aftermarket” for spare parts.
The proposal has raised concerns that reducing auto
manufacturers’ revenue could force them to raise new car prices
or discourage them from investing in research and innovation.
However, according to the Commission, the negative effect of the
proposal should not be over-estimated as the rewards from the
exclusive rights in the primary market are quite sufficient to
encourage investment in design.
If adopted, the proposal will significantly alter the scope and
enforcement of design rights. In particular, it may circumvent,
at least for external spare parts, many of the complex issues
arising from “must fit” exceptions to design rights.
2. Launch of IP Europe Website
A new website, IP Europe, has been launched intended to improve inventors’ and SMEs’ awareness within the European business community, and to provide them with some basic advice on how and when to use the industrial property system to optimum effect for commercial advantages.
The project is sponsored by the European Commission Enterprise Directorate-General, and co-financed within the fifth framework programme of the European Community. The project team consists of representatives of national patent offices, including the UK Patent Office, the French Institut National de la Propriété Industrielle, the Swedish Patent and Registration Office and the Industrial Property Office of the Czech Republic, as well as the Icelandic Research Council, and the British Library and Technology Enterprise Kent.
IP Europe is the result of a two-year consultation between the project team members to find ways to simplify access to IP information in Europe for inventors and SMEs, and to help them find the best way to capitalise on their patents, trade marks and designs in Europe.
The website provides a selection of customer-friendly guides, services and information to advise inventors and SMEs on how to use the industrial property rights system, what the best mode of protection for their inventions is, and how to use industrial property databases to find information generated by the industrial property rights systems. In addition, it offers inventors and SMEs the possibility to use a central contact, within a network of National Patent Offices, for all industrial property services and information. Finally, it contains basic information about patents and licensing, as well as the costs of patenting inventions, and, registering trade marks and industrial designs at National and European level.
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