[The IPKat] [Guest post] The Commission’s Proposal for a Regulation on EU Designs (codified text) – Disconcerting news from Brussels

[Eleonora Rosati]

[Guest post] The Commission’s Proposal for a Regulation on EU Designs (codified text) – Disconcerting news from Brussels

 Eleonora Rosati Monday, December 01, 2025 - Alexander Bulling, designs, EU design reform, Guest post, Henning Hartwig, Philipe Kutschke, Sabine Kossak

The IPKat has received and is pleased to host the following guest contribution by Katfriends Henning Hartwig (Chair of the Committee for Design Law of the German Association for the Protection of Intellectual Property Law (GRUR)), Alexander Bulling (Chair of the Committee for Design Law of the Chamber of German Patent Attorneys), Sabine Kossak (Co-Chair of the Committee for Design Law of the German Association for the Protection of Intellectual Property Law (GRUR)), Philipe Kutschke (Vice-Chair of the Designs Committee of the Association Internationale pour la Protection de la Propriété Intellectuelle (AIPPI)) on the Commission’s latest proposal for a Regulation of the European Parliament and of the Council on EU designs (codified text), which includes some amendments. that they are not happy with Here’s what they write:

The Commission’s Proposal for a Regulation on EU Designs (codified text) – Some disconcerting news from Brussels

by Henning Hartwig, Alexander Bulling, Sabine Kossak and Philipe Kutschke

I.

When dealing with the various innovations in EU design law, these Katfriends came across the Commission’s latest proposal for a Regulation of the European Parliament and of the Council on EU designs (codified text) (hereinafter: ‘Codified Regulation’). Apparently, the text is not published on the Commission’s website but can be found on the European Parliament’s website in all official languages.

This is the codification of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (hereinafter referred to as the ‘Community Designs Regulation’), as amended by Regulation (EU) 2024/2822 of 23 October 2024 (hereinafter referred to as the ‘Amending Regulation’), which is now called the ‘EU Designs Regulation’.

II.

Quite disconcerting, the proposal for the Codified Regulation submitted by the Commission contains amendments to the wording of Article 11 Codified Regulation (formerly Article 10 Community Designs Regulation or ‘CDR’) in various language versions. Article 11 Codified Regulation is the central provision on the scope of protection of any EU design. This provision remained unchanged by the Amending Regulation and was not affected during the legislative process.

For the sake of clarity, these Katfriends produced a synopsis (also available here) of selected language versions of this provision, which shows a comparison of the text of Article 10 CDR and Article 11 Codified regulation in several language versions which are affected by the amendment:

Unfortunately, no reasons for the changes are given by the Commission. Rather, Article 10 Community Designs Regulation is identical in the various language versions so that a linguistic adaptation was not required.

III.

In terms of content, the proposed amendment provides that the ‘degree of freedom of the designer in developing his design’ is no longer taken into account for assessing the scope of protection but, rather, the ‘degree of freedom of designers in developing their designs (…).’

This results in a striking difference. While the previous wording is based on the focus on the designer and the development of his design – i.e., the design whose scope of protection is to be determined (‘claimed design’) – it now remains open whether the freedom of other designers in developing their designs is to be taken into account when assessing the scope of protection of the claimed design. This results in considerable legal uncertainty, which could lead to the fundamental error that the freedom of the designer of the accused design would be decisive.

Remarkably, in the French and Italian versions, the text is still unchanged, which leads to even more legal uncertainty and would disharmonize case law in different jurisdictions.

IV.

From a formal point of view, too, the proposed Article 11 Codified Regulation is clearly to go beyond the adjustments to the provisions which have remained unchanged by an amending regulation, which are in principle permissible in the event of codification.

The wording proposed for the Codified Regulation also clearly deviates from the wording of the corresponding provisions of Article 5 (2) Directive (EU) 2024/2823 of 23 October 2024 (recast).

V.

Finally, these Katfriends noted that the proposal for the Codified Regulation reads in the Explanatory Memorandum under no. 5:

The codification proposal was drawn up on the basis of a preliminary consolidation, in all official languages, of Regulation (EC) No 6/2002 and the instruments amending it, carried out by the Publications Office of the European Union, by means of a data-processing system. Where the Articles have been given new numbers, the correlation between the old and the new numbers is shown in a table set out in Annex III to the codified Regulation.

"An IPKat by any other name would smell as sweet" (cit)

It appears that the inconsistencies are – at least partly – due to the automated consolidation/translation of the versions. It would certainly be useful for the Commission (or the Publications Office) to carefully check the legal correctness and consistency of all language versions before they are published. As long as multilingualism is one of the basic principles of the EU, there is probably no way around this diligent task.

Overall, it must be stated that Article 11 (2) Codified Regulation has no legal basis and must therefore bestrictly rejected. Instead, the original text of Article 10 (2) EU Designs Regulation, which was adopted in the legislative process, should be re-installed. These Katfriends urgently hope that the original version remains unchanged—also to provide consistency between the Designs Directive and the Codified Regulation and, thus, establish legal certainty.

VI.

Last but not least, it is very surprising if not disconcerting to see that the Amending Regulation translated the English term ‘European Union Design’ or ‘EU Design’ into ‘Unionsgeschmacksmuster’ and not into ‘Unionsdesign’. More than 10 years ago, the German legislator deleted the term ‘Geschmacksmuster’ from the statute and replaced it with ‘design’. The two-pronged use of terms (‘Geschmacksmuster’ and ‘design’) repeatedly leads to confusion not only among users of the system, but also among legal experts. We are, therefore, still strongly in favour of completely deleting the term ‘Geschmacksmuster’ and replacing it with ‘Unionsdesign’. With the Codified Regulation now proposed, this should be possible. By the way: The German version of the Directive (EU) 2024/2823 of 23 October 2024 (recast) also uses the notion ‘Unionsdesign’.

From these Katfriends' perspective, the codification should also be used to replace the term ‘Geschmacksmuster’ with ‘design’ as has already been done in the German design law. Also, in other language versions, the codification was used for linguistic amendments (for example, in the Spanish version, the term ‘dibujo o modelo’ has been replaced by ‘diseño’).

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