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01 February 2024

I spy with my little eye …

There has been a lot of movement and prognosticating lately in the world of IP to gear up for the future of an oft-forgotten but all the more useful legal instrument: designs.

In 2024 we can expect a revision of the Community Design Regulation and Directive, the main pillars of legal protection of designs in the EU that have been in effect for more than 20 years. This will modernise the legal framework and make protecting designs in the EU quicker, cheaper and more predictable. In addition, the Court of Justice of the European Union this year dealt with several design law cases that are shaping harmonised design law at an EU level.

What designs are worthy of protection?

The cases to be resolved can be rather special, such as a recent one in which the CJEU addressed a question posed by the German Supreme Court about whether the design of the underside of a bicycle saddle can be subject to design protection. This matter arose in connection with the requirement that the component part (the saddle) of a complex product (the bicycle) has to be "visible" during the "intended use" of the complex product, which the component part must fulfil to enjoy design protection. Hence, the question was whether the user of a bicycle can be expected to look under the saddle during its intended use. Visibility during maintenance, servicing and repair, however, does not count according to the law.

The CJEU ruled that intended use includes acts incidental to the principal customary use of a product and other acts which may reasonably be expected during such use and which are customary from the point of view of the end user, including storage or transport of the product. Ultimately, it was left for the German Supreme Court to decide based on those criteria, but it remanded the case back to the German Patent and Trademark Court to further clarify whether the design of the underside of the saddle can be seen during storage and transport or other uses.

But at the end of the day, is the design of the underside of the saddle even worthy of being protected? Does it fulfil the necessary criteria of novelty and individual character? Stay tuned.

author: Birgit Kapeller-Hirsch


Attorney at Law

austria vienna