Many enthusiastic voices have announced the upcoming European Design reform, portraying it as rich in new provisions aimed at modernizing the system.

Although I agree that the reform has made the European Union’s design law arguably the most up-to-date in the world, in my opinion, it lacks the most crucial amendment that the previous legislation required.

I find some comfort in knowing that I am not alone in this view.

Indeed, I am aware that the Belgian National Association for the Protection of Industrial Property raised similar concerns during the Public Consultation launched in December 2018.

Moreover, similar and even more in-depth opinions have been expressed by prominent scholars—most notably in Fernand de Visscher’s article “Les dessins et modèles dans l’Union Européenne Anno 2019: à la croisée des chemins entre incertitudes, incohérences et juste protection?”, published in “Homenaje a Luis-Alfonso Durán – Estudios Sobre Propiedad Industrial e Intelectual.”

Knowing that others share this perspective, strengthens my resolve to express it publicly, even if, at this point, it may be (at least for the next 20 years or more) of little practical use.

The issue I refer to is that both the previous and current design legislation make an intrinsic reference to a “product.”

According to both laws, a design is defined as “the appearance of […] a product” (Article 3 of Regulation (EU) 2024/282 and Regulation (EC) No. 6/2002).

In both regulations, the reference to a specific product is essential to understanding many aspects of the design registration process and its enforcement.

The curious thing is that, once a design is published, it is impossible to determine with certainty which product it refers to.

Article 36(6) states that the indication of products made in the design application “shall not affect the scope of protection” of the design.

By excluding the possibility of using the product indication as a clue to understand the design’s intended application, all references to the product in the legislation become practically meaningless.

Who is the “informed user” informed about?

To which sector does the designer’s “freedom” refer?

What is the “sector” in which the “circles” are “specialized”?

How can we determine “normal use”, “visible features” or the “end user” if we do not know what product we are referring to?

Despite the observations submitted during the consultation period, the European Union regulation ignored this issue and published a “reform” that, in this respect, is identical to the previous one.

Note that while Article 36 paragraphs 1 to 5 have been amended, paragraph 6 remains unchanged.

However, I believe that some doubt must have arisen in the legislator’s mind—or at least in the mind of those who drafted part of the reform.

In fact, the design reform consists of two acts: Regulation (EU) No. 2024/2822 and Directive (EU) No. 2024/2823.

While the Regulation is identical to the previous one (No. 6/2002) in this regard, the Directive introduces Recital 17.

Recital 17 states:

“While an indication of the products should be part of an application for registration of a design, it should not affect the scope of protection of the design as such. Together with the representation of the design, indications of the products can nevertheless serve to determine the nature of the product in which the design is incorporated or to which it is intended to be applied”.

This underlined portion is a significant victory for supporters of the specialty principle in design law, like myself.

It shows that the legislator recognizes the need for an objective reference point to determine the product to which a design pertains, in the interest of legal certainty.

On the other hand, the EU legislator was not bold enough to include this provision in the body of the law, placing it instead in a Recital—thus leaving it to interpreters to assess its weight in the interpretation of the Directive.

Furthermore, we must consider that the Regulation and the Directive serve different purposes.

The Regulation governs the European Design right, which is a unitary right covering the entire EU.

The Directive, on the other hand, provides Member States with principles to follow when drafting national laws.

Therefore, I believe it is questionable whether Recital 17 of the Directive can be used to interpret the Regulation.

If my doubt is well-founded, we may end up with a European law that prohibits reference to product indications in design applications, and 27 national laws that must be interpreted as allowing such references.

Not exactly a “harmonized” situation.

Let’s see how the Courts will interpret these provisions…even though, in my view, the law should be clear in itself, and one should not have to rely on a Court to understand its meaning.