European design legislation: fit for purpose?

The European Commission has recently published its report assessing the effectiveness and efficiency of current European design legislation. The assessment has been conducted over a number of years and follows the publication of the commission study on whether current IP systems are fit for purpose in light of developments in 3D printing. While the 3D printing study considered all IP rights and their ability to serve as a tool for protecting innovation in a 3D printing world the design study more generally looks at fitness for purpose of current design legislation. The report concludes that EU design legislation achieves its intended aim and is popular, if somewhat underused.

The study concludes that current legislation should be updated to account for changes brought about by the digital and green transformations. In reaching this conclusion the design study unsurprisingly leans on the earlier 3D printing study.  The 3D printing study found that a particular concern relates to the handling of CAD files. Whilst CAD files per-se do not attract design protection the design the CAD file is based on does. As a result of this it is presently not clear if acts such as uploading, hosting and downloading a CAD file on a publically available server constitutes design right infringement.  The 3D printing study suggested that the scope of protection of European design rights be changed to better protect digital designs. Additionally it recommends that the breadth of the private use exception in the context of 3D printing be reviewed to ensure design protection strikes the correct balance between securing protection and allowing individuals a reasonable degree of freedom of use.

An expansion of the scope of protection afforded by European design protection to capture digital designs would be a welcome development not only for those creating digital content intended for sharing but also for more traditional manufacturers that simply create digital blueprints for the purpose of manufacture. The sharing of such blueprints can enable potential infringers to reproduce the product shown in the blueprints using 3D printing without the need for technical/manufacturing expertise that is required by traditional manufacturing methods. An adjustment of design protection that would prevent the sharing of CAD files is therefore of great benefit to all manufacturing industries.

Design protection is an excellent tool to guard against direct copying. Over the last decade 3D printing has made inroads into mass-manufacturing and it is to be expected that over the coming years this trend is set to intensify, as also anticipated in the commission's design study. As such 3D printing manufacturing is unlikely to be limited to slavish copying of existing products but is likely to be used in manufacturing competing products that, whilst providing a different appearance from the existing product (and are therefore not covered by any design protection the existing product may enjoy), provide equivalent functionality to the existing product. As such it is critical that it is not only design protection that moves with the times to guard against infringement in a digital age but that other IP rights are equally used in a manner that maximises protection against 3D printing infringement. As previously discussed patents and trademarks in particular can provide excellent tools for providing such protection, albeit only if used with the threat of 3D printing infringement in mind.