BLOG@IP::JUR

Patent Attorney Axel H Horns' Blog on Intellectual Property Law.

Disclaimer & About This Website

Visit the archives

Friday, September 17, 2004

Design Law: CEC proposes to liberalise the Spare Part Market.

The European Commission has proposed a

Directive of the European Parliament and of the Council amending Directive 98/71/EC on the legal protection of designs.

According to the Commission's proposal, the amendment concerns design protection of spare parts intended to restore the appearance of complex products such as motor vehicles. It aims to complete the Internal Market through the process of liberalisation begun and partially achieved in Directive 98/71/EC, so as to increase competition and offer consumers greater choice as to the source of spare parts used for repair purposes. At the same time it maintains the overall incentive for investment in design as it does not affect design protection for new parts incorporated at the manufacturing stage of a complex product. At present, the Directive does not exclude the protection of spare parts by a design right, in other words, the protection conferred on the design of the new part in the primary market can equally well apply to the spare part in the secondary market or aftermarket. The Commission argues that in spite of the fact that Member States were not able to agree on harmonisation in the aftermarket, article 14 of the Directive did stipulate that Member States shall maintain their existing laws in this regard and may change those provisions only in a way that liberalises the spare parts market (the “freeze plus” solution). What is more, Article 18 of the Directive provides for the Commission to analyse the consequences of the Directive and to come forward with any changes to the Directive to complete the market in spare parts. As the Directive did not change the status quo for existing spare parts regimes in MS, except to allow for liberalisation, an analysis of the consequences of the Directive itself at this stage would not assist in deciding what further changes are necessary. Instead, the Commission focussed its study on the specific issue of design protection in the aftermarket. Now that all Member States have transposed Directive 98/71/EC into their national legislation the situation is as follows:

Austria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Lithuania, Malta, Poland, Portugal, Slovakia, Slovenia and Sweden have still effectively design protection for spare parts.
In Belgium, Hungary, Ireland, Italy, Latvia, Luxembourg, The Netherlands, Spain and United Kingdom a repairs clause is foreseen, allowing design protection on new products but leaving the possibility for alternative parts in repair or replacement in the aftermarket.
Greece provides for a repairs clause combined with a term of protection of 5 years and a fair and reasonable remuneration. This system of remuneration has not yet been put into practice.

Article 1 of the proposal now provides that protection as a design shall not exist for a design which constitutes a component part of a complex product used within the meaning of Article 12(1) of the Directive, for the purpose of the repair of that complex product so as to restore its original appearance. Member States shall ensure that consumers are duly informed about the origin of spare parts so that they can make an informed choice between competing spare parts.

[Permalink]