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Edited by Josef Drexl
Chapter 13: Limiting IP Protection for Competition Policy Reasons – A Case Study on the EU Spare-Parts-Design Discussion
13 Limiting IP protection for competition policy reasons – a case study based on the EU spare-parts-design discussion Annette Kur 1 Introduction In September 2004, the European Commission launched its proposal for a repairs clause to be inserted in the Directive 98/71/EC on the protection of industrial designs.1 The purpose of the proposed provision is to enable the independent making and distribution of ‘must-match’ component parts of complex products for repair purposes, in spite of the protection of such parts by an industrial design right, under the condition that consumers are correctly informed about the commercial origin of the part. The proposal for a new Article 14 is worded as follows: 1. 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 this Directive, for the purpose of the repair of that complex product so as to restore its original appearance. 2. 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. Proposal of 14 September 2004 for a Directive of the European Parliament and of the Council amending Directive 98/71/EC on the legal protection of designs, COM(2004) 582 final = http://eur-lex.europa.eu/LexUriServ/site/en/com/2004/ com2004_0582en01.pdf, accessed 4 November 2007. For a positive evaluation of the proposal see Drexl, J., R.M. Hilty and A. Kur (2005), ‘Design Protection for Spare Parts and the Commission’s Proposal for a...
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