Germany: The reform of EU design law – Fast protection for fast fashion

The first part of the EU design package has been in force since May 2025, namely Phase I of Regulation 2024/2822 of 23 October 2024 amending the Union Design Regulation (EC) No 6/2002. Phase II of the Regulation will enter into force in July 2026. Member States must implement the new Design Directive 2024/2823 by 9 December 2027. This comprehensive reform is the most significant modernisation of European design law since its introduction in 2002 and is intended to bring about simplification and modernisation.

The design/registered design as an unexamined property right

The design is an unexamined right in Europe. When an application is filed, only the formal requirements are examined (completeness of all information on the applicant, reproduction in a suitable representation). The requirements for protection, namely novelty and individual character, are not examined. The design thus protects the appearance of a product for up to 25 years, as long as the renewal fees are paid. Since 2002, this has made it possible to obtain a registered IP right quickly, often within a few days.

What are the specific benefits of the reform?

Simplification

• Streamlining and standardisation of the application procedure: EU designs must now be applied for digitally at the EUIPO (previously, it was still possible to submit a paper application to the national IP office). Further requirements mainly concern national designs in order to ensure consistency with the EU procedure.

• Simpler cost structure for EU designs: The application and publication fees have been combined. In the past, it was possible to delay the publication of the design by not paying the publication fee, thus saving the special fee for late publication. This is no longer possible. In addition, the fee rates will be raised moderately overall, with only renewals becoming significantly more expensive: for the fourth and final renewal (years 21-25), the fee will increase from €180 to €700!

• Simplification of multiple applications: The requirement “uniformity of class” is being abandoned. Although the protection of a design is not limited to a specific product, the application must still specify what product the design is intended to represent. Previously, all designs in a multiple application had to relate to the same product class. If the EUIPO does not agree with the classification, it can raise an objection. Until now, this meant that the design in question could not be included in the multiple application. `

  This is no longer the case. Collective applications are now even more attractive because, despite changes in the cost structure, they are cheaper than individual designs and have no disadvantages. The only restriction is that a collective application can contain a maximum of 50 designs.

Modernisation

• Introduction of the “Ⓓ”: The “D in a circle” is intended to identify registered designs in a similar way to © for protected copyright works or ® for registered trademarks. However, it remains to be seen how attractive or useful this is in the case of an unproven property right. Problems arise in particular if a design is subsequently declared invalid, because the Ⓓ could then quickly become misleading if it is not removed.

• Extended product concept: The definition of the protected “product” has been expanded to include unknown technologies. A product “in a non-physical form” can now also be protected. Other examples explicitly mentioned are: “graphical user interfaces” and “spatial arrangements of items intended to form an interior or exterior environment”. This still seems somewhat vague at present, but is intended to be technology-neutral and also cover products that are still unknown or difficult to describe in words today.

• Extended design concept: “movement, transition or any other sort of animation” can now also be protected as registered designs, which is particularly relevant for “non-physical” products such as graphical user interfaces. Unfortunately, the display in the EUIPO register is currently still limited to a maximum of seven individual images, which only allows animations to be displayed in the form of a “flip book”. The directive stipulates that for national designs, the reproduction “may be static, dynamic or animated” and “shall be effected by any appropriate means, using generally available technology”. In phase II of the regulation’s entry into force in July 2026, it is envisaged that the EUIPO will determine “the manner of numbering different views in the case of representation by static views, the format and size of an electronic file, and any other relevant technical specifications”. The EUIPO is currently working on the implementation of this. It is to be hoped that this will result in alignment between EU level and national design law, especially since the display of video files and animated images is already possible in the EU trade mark register.

• Extended injunction: “Creating, downloading, copying and sharing or distributing to others any medium or software which records the design for the purpose of enabling a [protected] product to be made” is now also prohibited. This is clearly aimed at 3D printing. It has never been so easy and inexpensive to produce imitations of any object, even for consumers. From the perspective of rights holders, the new provision is therefore welcome. However, it could go too far, as it now also covers the creation and distribution of “print templates” for 3D printers in the form of so-called CAD files. This could become a significant liability issue for platforms where users exchange information about 3D printing and which have previously allowed the legal distribution and downloading of such templates for non-commercial personal use.

  Even more problematic is the inclusion of “software which records the design”. Since software cannot distinguish between self-created, free and protected designs, this provision could make the software itself illegal. It remains to be seen how this regulation will affect 3D printing technology and its dissemination.

• Repair clause for spare parts: Spare parts do not infringe protected designs if they are used for the purpose of repairing a complex product in order to “restore its original appearance”. Tuning parts or accessories are not covered by the exception, which in addition cannot be enforced as long as a protected trademark is visibly used on the spare part in question. The rule is clearly primarily aimed at the automotive market, but also affects so-called “Rolex tuning”.

• Border seizure in transit: In the case of counterfeit goods, border seizure may take place in the transit country if the distribution of the products in the destination country would be inadmissible as a design infringement. A similar rule already applies in trademark law. In the area of “fast fashion”, an EU-wide border seizure application may be worthwhile because designs can be protected quickly and easily and made the subject of such an application. Ultimately, however, its effectiveness certainly depends on the diligence of customs officials.

What does the reform mean for companies?

As with all well-intentioned reforms, the changes also bring new legal uncertainties. Developments in the field of 3D printing and virtual designs will be particularly exciting, as the reform is breaking new ground here and it will probably take several years for the contours to become clearer. The overlaps with other areas of law, and in particular copyright law, also remain unclear. The long term of protection (70 years after the death of the creator) and the fact that copyright does not require registration and is not subject to fees make copyright very attractive for companies.

However, one thing is already clear: the reform is a significant step towards modernising European design law and makes this often unjustly overlooked property right even more attractive. This is because designs enable innovative companies more than ever before to obtain registered and effective protection within a few days, which can be enforced throughout the EU. This can now even be communicated through the new “Ⓓ in a circle” symbol. Protection against plagiarism is strengthened by the transit rule and the possibility of border seizure – not bad for an untested property right whose legal validity is even presumed in infringement proceedings.

Cost-effective multiple applications enable the protection of specific versions of products. Whether fashion or mobile phones: both can be registered and protected in different colours and designs. What’s more, obvious variants and alternatives to the designs actually used can be registered, thus creating a kind of “protective circle” around the product. Unlike trademarks, there is no obligation to use designs, and protection is not limited to specific goods or services. Designs should therefore become an integral part of every company’s IP strategy – in future even for companies operating in the digital cosmos.