Vorsprung durch Technik: Abolition of the OEM privilege (also) for automotive spare parts?
New EU design protection package
The EU is currently planning a comprehensive new design protection package. This provides for changes to the Regulation on Community Designs ("EU Design") and amendments to the Directive on national design laws. The Commission, the Council and the Parliament have now reached a provisional agreement on this. However, the proposal still has to be formally adopted by the individual legislative bodies. The regulation could then enter into force immediately. A transposition period of 36 months is envisaged for the directive. In particular, the amendments provide for an adjustment of official fees, new official services and a ban on the protection of elements of cultural heritage of national interest (e.g. traditional costumes can no longer be protected under design law in future).
Repair clause for spare parts
The most important innovation, however, is the EU-wide harmonization of the prohibition of protection for spare parts that are part of a complex product on which the appearance of the component depends (so-called "repair clause"). The EU legislator's intention is to facilitate access to spare parts for consumers and to liberalize the market. The EU explicitly mentions the automotive spare parts market as a relevant application. In principle, however, the draft clause is worded openly, meaning that other areas of application are also conceivable.
In practice, the clause enables third-party manufacturers to offer spare parts that restore the original appearance of the complex product (i.e. the vehicle), provided that the origin of the spare part is clearly and visibly indicated on the product. Protection under design law is not granted for such products. The manufacturer's label is intended to enable the consumer to make an informed decision as to which of the competing products is to be used for the repair.
Outlook
The draft law has not yet been formally adopted. However, it is unlikely that there will be any major changes. An expansion of the product portfolio and new market access therefore seems possible for third-party suppliers of automotive parts. However, it remains to be seen whether this will be realized in the near future. This is because the draft directive also provides for generous transitional provisions. For example, national designs that are already registered will continue to enjoy protection for up to 10 years after the directive comes into force, regardless of the new regulations. Suppliers of original spare parts will therefore make use of the last opportunities at national level to achieve the longest possible protection status. However, this is not possible for new designs. The EU Design Regulation also provides for direct effect for EU designs, as far as can be seen, without transitional provisions.
Summary
The EU is currently planning a comprehensive new design protection package. In particular, this provides for a repair clause according to which design protection is no longer granted for certain spare parts throughout the EU.
This opens up market opportunities for third-party suppliers, particularly of automotive parts, as the manufacture of certain parts is no longer reserved for OEMs only. The repair clause is not limited to the "automotive" sector, meaning that other areas of application may also arise.
However, it is to be expected that manufacturers could use generous transitional provisions in individual cases to obtain a longer protection status. The amendment to the law could therefore have a more long-term effect in individual cases. However, this does not apply to new designs.
Status: 14.12.2023