EU Design Law: Transitioning Towards Coherence? 15 Years of National Case Law
N. Bruun, G. Dinwoodie, M. Levin & A. Ohly, Transition and Coherence in Intellectual Property law, Cambridge University Press, Forthcoming
10 Pages Posted: 15 Apr 2019 Last revised: 29 Oct 2019
Date Written: March 19, 2019
The Design Directive and Design Regulation (‘EU design law’) are now almost 20 years old. The Max Planck Institute’s drafted a proposal for an EU design law. The European Commission’s proposal for a legal protection of designs was close to the Max Planck draft in most part and the said draft is also quite close to the actual texts of the directive and regulation. This chapter examines the case law of the 28 EU Member States since the entry into force of the Design Directive and Design Regulation until August 2017 included, to see how countries have been transitioning from no design law (e.g. Greece) or their old design law to the new EU design law and whether the law has achieved coherence over the first years it has been applied. Because space is limited, the chapter only concentrates on one aspect, though arguably the most important and definitely the most interpreted at national level, namely the notion of individual character and its corresponding use at infringement level. It examines whether national courts have applied this concept and associated tests (mainly the concept of informed user) adequately or not and concludes that overall, they have. Very few courts have misapplied the law and with time, the misapplications have decreased. Nonetheless, there are some courts which still misapply these notions so the chapter proposes remedies to achieve full coherence.
Keywords: designs, European Union, individual character, infringement
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