The chapter contains a summary report of the interpretations of the Community Design Regulation (EC) 2/2002 by the Court of Justice of the European Union. Since Case C-32/08 FEIA on the ownership of design rights and successor in title of 2 July 2009, around a dozen design judgments have been resolved, of which a majority relate to interpretations of the Regulation. The FEIA case is among those that are of special importance and value, where the Court has rendered autonomous EU-wide interpretations marking the trade-related dimension of design in the Community landscape. When that has happened, it appears preferably in support of a design approach with designers and their market in focus. Despite the fact that such interpretative declarations gain legal status and become binding on the Member States beyond the particular situation, they contribute to making design law discussed and analysed more among legal scholars and thus more clear.
Annette Kur and Marianne Levin
Chapter 1 begins by taking us back to before European harmonization and ends with a self-critical perspective of current developments. At the time, striking diversity was characteristic of national design legislation, which made the issue of a European law an appropriate legal research target. Various academic initiatives were taken towards a European solution for designs, including the Max-Planck-Institute’s Proposal for Foreign and International Patent Law on Copyright and Competition Law (MPI). The explicit goal of the MPI Proposal was to develop a pan-European concept for design protection based on a true “Design Approach”. This meant taking into account the “marketing effect” of design with an unregistered right as a complement to the rigid registration system. For the four MPI academics, the opportunity to create a complete legal system based on their own concept was a fantastic opportunity. It also gave a unique start to EU legislation, which could hardly be imagined today.
Annette Kur and Marianne Levin
Edited by Annette Kur, Marianne Levin and Jens Schovsbo
Annette Kur, Marianne Levin and Jens Schovsbo
This chapter brings together the findings of the previous chapters and use these for some finale perspectives. It is concluded that, even though hard evidence of the economic efficacy does not exist, the design system should be considered as an overall success: the envisaged model is in place and running and seems to have been well received by the users. Some problems have arisen that were not anticipated or dealt with at the time of drafting – most notably the overlap with copyright and unfair market law – but the development in case law from the CJEU – notably Nintendo and DOCERAM – indicate promising pathways for courts to manage the negative effects of overlaps. Similarly for the effects of the scope of protection where the catalogue of limitations is overly limited the CJEU with inspiration from trade mark law points in useful directions. Adjustments of the system are thus called for but basically the system seems to be efficient and to deliver what it was designed to do.