The Cumulative Protection of Designs in the European Union and the Role in such Protection of Copyright

Abstract

Designs are protected in the EU by a multiplicity of different, overlapping, intellectual property rights. Traditionally however there has only been limited scope in most EU member states to protect designs by copyright. This is set to change, as the result of an only recently appreciated interaction between legislative changes harmonising the term of protection for copyright works made back in 1993, a decision of the CJEU in 2009 as to the threshold of originality for copyright works generally, and another decision of the CJEU in 2011 as to the consequences in practice of a requirement in EU designs legislation that there be cumulative protection as between copyright and designs. This article discusses how this situation has come about, and what its significance for the future of design protection in Europe is likely to be.