[Guest post] Animated designs – revisited under current and future EU design law

The IPKat has received and is pleased to host the following guest contribution by Katfriend Henning Hartwig (Bardehle Pagenberg) on the status of protecting animated digital or virtual designs under EU design law. Here’s what Henning writes:

Animated designs – revisited under current and future EU design law

by Henning Hartwig

According to Article 4(2) of the current Community Designs Implementing Regulation (CDIR), the representation of the design may contain no more than seven different views of the design. In view of the ongoing extensive review of EU design law, many stakeholders have submitted proposals to abandon the seven-view limit, allowing for a higher number of representations.

Animated Kats

Fortunately, according to the Position of the European Parliament adopted at first reading on 14 March 2024 with a view to the adoption of a Directive of the European Parliament and of the Council on the legal protection of designs (recast), replacing Directive 98/71/EC, the adopted Article 26(2) of the recast Directive provides that the reproduction of the design ‘shall show all the aspects of the design for which protection is sought in one or more views.’ This sentence leaves room for the submission of an unlimited number of views, or at least seems to abandon the seven-view-limit.

As regards the Community Designs Implementing Regulation, currently Article 4(2) CDIR remains in force which provides for a maximum of seven views. It is clear, however, that under the Community Designs Regulation as well, the seven-views-limit will disappear (once revised). This is not immediately apparent from the amending Regulation itself but follows from the fact that all provisions in the revised Regulation which require implementing acts (which would then replace the current CDIR) enter into force only the first day of the month following 18 months after the date of entry into force of the amending Regulation (Article 3 third paragraph of the amending Regulation).

Once approved, the revised EU Designs Regulation shall enter into force on the 20th day following that of its publication in the Official Journal of the EU and shall apply from the first day of the month following four months after the date of entry into force (Article 3 first and second paragraph of the amending Regulation). As regards the recast Designs Directive, Member States shall bring into force the laws, regulations etc. necessary to comply with the Designs Directive 36 months after the date of entry into force of the Directive at the latest.

The new law will provide for the opportunity to file more than seven views, which is welcome. However, as submitted elsewhere, while views from various perspectives or in an extended sequence might put the holder in a better place for arguing validity it is more difficult to argue infringement, requiring the holder to walk a thin line between Scylla and Charybdis. Actors particularly in the video game industry and interactive entertainment sector should also make sure that when opting for a specific kind of order of the views the chosen movement/progression should be overall consistent and clear. Finally, protection by way of a partial design is broad by nature but opens the door to additional prior art.