The ‘Legal Review on Industrial Design Protection in Europe’: A closer look

Abstract

Henning Hartwig is Partner at BARDEHLE PAGENBERG in Munich. His practice involves prosecution and litigation of IP rights in the fields of trade marks, design, copyright and unfair competition law. He is the editor of the four-volume casebook Design Protection in Europe. This article examines the recent Study on Industrial Design Protection in Europe and summarizes its conclusions. It presents the Study’s main recommendations, highlighting positive steps—such as its support of the ‘multiplicity of forms’ theory—and missed opportunities, such as the lack of a convincing proposal on the meaning of non-continuous lines. The author raises some concerns on the methodology of the Study in terms of the selection of the Member States taking part and the stakeholder surveys and interviews which contributed to it. Finally the author presents a forecast of which of the Study’s recommendations are least and most likely to see the light of day. The author agrees with the Study’s recommendation that disclosure of prior art should be clarified by the collective jurisprudence of national courts, EUIPO and from the Court of Justice, but states that it would make sense for other areas of legal ambiguity—such as the degree of freedom of the designer, informed user test and scope of prohibition—to also be clarified by the courts.