The chapter addresses the question of whether the legal objectives underlying the statutory provisions in design legislation are adequately reflected in the legal practice. Building on the case law of the General Court and the Court of Justice presented in Chapter 3, as well as on selected issues of national case law the chapter revisits the requirements for establishing the legal validity of designs as well as the operation of central notions and concepts such as the protected subject matter, the informed user and the freedom of designers. It concludes that, while some issues remain open, the overall picture is positive and only calls for few adjustments in practice, which might also be put into effect at a sub-legal level, in the framework of the convergence programme and the European Trade Mark and Design Network established on that basis.
The chapter gives an overview on jurisdiction, applicable law and sanctions concerning design rights in the EU, on the national level as well as in regard to CDRs. The issue is of practical importance, as the market for designs has no linguistic barriers and therefore often extends over several national borders or to the EU in its entirety. While cross-border enforcement of rights still poses certain challenges, it has become easier inter alia by clarifying decisions delivered by the Court of Justice. However, certain gaps still must be filled, such as in particular the promulgation of uniform sanctions for infringement of union-wide rights, which must be complemented by a likewise uniform body of procedural defences for the alleged infringer.