As part of the recent European Union (EU) design reforms, the requirement for an unregistered design to be first disclosed in the EU to benefit from unregistered community design protection has been deleted. What does this mean and what are the practical implications for fashion and luxury businesses?

Naturally, design protection is crucial in the fashion and luxury industries, where visual appeal and originality are central to brand identity and market relevance. Therefore, businesses should carefully consider its strategy for protection; and the recent EU design reforms may impact those considerations.

The EU and UK design right schemes differ somewhat, with significant divergence since Brexit. The EU has registered EU designs (REUD) (akin to UK registered design rights) and unregistered EU designs (UEUD) (similar to supplementary unregistered design rights (SUD) in the UK). Historically, for both UEUDs and UK SUDs, disclosure in the relevant jurisdiction was required, i.e. the EU for UEUDs and the UK for SUDs. This creates challenges for fashion brands operating globally, especially those launching collections online or outside the relevant jurisdictions.

However, a recent EU legislative reform has seemingly (and very quietly) eliminated the territorial restriction previously applicable to unregistered design rights, which could extend eligibility for UEUD protection to designs disclosed anywhere in the world.

Implications for businesses and designers:

The EUIPO has not provided an explanation for the deletion, but one might assume that such a step would not have been taken unless there was an intention to remove the requirement. Conversely, this amendment is absent from the list of 'substantive changes' outlined in the EUIPO’s summary of the design reform, which raises questions; if the amendment did remove the requirement, it would likely be considered a substantive change. This has resulted in some uncertainty as to its effect, and commentators have observed that the true implications of this change may remain unclear until the European Court of Justice delivers a ruling on the issue.

If the deletion does mean a removal of the requirement, it is likely good news for UK (or any non-EU) designers, as it would:

1. Remove the risk that a UK disclosure (or anywhere outside of the EU) would destroy novelty for the purposes of the UEUD.

UEUD protection arises automatically upon disclosure, so is especially valuable in the fast-paced fashion industry, where speed to market is crucial. This offers immediate and somewhat effortless intellectual property coverage for designs that meet the requirements.

This could impact how a brand considers its launch strategies, as it may no longer be a priority to launch in the EU first.

2. Clarify the position for online disclosures.

Fashion collections are increasingly launched online, often with global reach from the moment of release. This creates uncertainty about whether such disclosures would count as “within the EU”. Therefore, this change would be advantageous for ecommerce businesses and influencer-led labels.

Takeaways

The recent EU design reform, particularly the potential removal of the EU-first disclosure requirement for UEUDs, could result in a significant shift for fashion and luxury businesses. This change could simplify global launch strategies, reduce the risk of inadvertently losing design protection, and provide greater clarity for online disclosures which are an increasingly dominant mode of unveiling new collections. However, the absence of formal clarification from the EUIPO, coupled with the exclusion of this measure from the list of substantive reforms, introduces a layer of legal uncertainty that businesses should navigate carefully. To mitigate this uncertainty, brands should consider registering their designs wherever feasible, securing stronger and more predictable protection.