This article examines the protection requirements for unregistered European designs in light of recent case law and the reform introduced by EU Regulation 2024/2822, outlining practical implications and protection strategies useful for companies operating in the fashion, design, and creative industries.
Index:
- Protection of unregistered European designs and the main requirements
- The decision of the Court of Brescia
- Consequences for businesses and protection strategies
Protection of unregistered European designs and the main requirements
EU Regulation 2024/2822 confirms that unregistered European designs enjoys automatic protection, valid for three years from the first public disclosure within the EU and may be enforced only against subsequently created designs that are basically identical.
Such design must also meet the requirements of novelty and individual character, just like registered designs. In particular:
- Novelty requires that the design is not identical to, nor differs only in irrelevant details from, a design previously made public.
- Individual character means that the design must give informed users in the sector a substantially different overall impression from the one produced by earlier designs.
The decision of the Court of Brescia
These principles were reaffirmed by the Court of Brescia in judgment no. 1884/2025 of 7 May 2025, issued in a dispute between two fashion companies.
In the case at hand, the claimant argued that its competitor had marketed a jacket that was an exact imitation of its unregistered European design. The Court, however, dismissed the claim, finding that the features relied upon (cut, pockets, shape of the flaps, and type of fabric) were elements commonly found in many garments already on the market, and therefore lacked true originality and distinctive character.
In the absence of such requirements, the jacket design could not benefit from the protection granted to unregistered European Union designs.
Consequences for businesses and protection strategies
The decision underscores a key principle: protection for unregistered European designs is fragile and limited for the following reasons:
- Protection only lasts three years from the first public disclosure – compared to the 25-year duration of registered designs;
- It is necessary to prove that the design is new and recognizable when compared to existing designs on the market;
- The design is protected only against substantially identical models.
For these reasons, unregistered design protection is usually used as a residual tool, when the deadlines for registration have expired or were not met in time.
To ensure stronger, broader, and longer-lasting protection for their designs, businesses are therefore strongly advised to file for registration with the European Union Intellectual Property Office (EUIPO).
It is also important, with the assistance of experienced professionals, to carry out a preliminary assessment of the features that may be considered new and possess individual character, in order to highlight them. This allows companies to obtain, quickly and at low cost, an industrial property right with a certain duration (up to 25 years), and to rely on it more effectively in potential disputes.
In conclusion, careful planning of design protection enables businesses to defend their creative investments and to enhance their distinctive assets effectively within the European Union market.