Presentation on theme: "Spare Parts Where now?. António Andrade Chair, ECTA ’ s Design Committee Vieira de Almeida & Associados Krystian Maciaszek Trademark and Patent Attorney."— Presentation transcript:
António Andrade Chair, ECTA ’ s Design Committee Vieira de Almeida & Associados Krystian Maciaszek Trademark and Patent Attorney Kulikowska & Kulikowski Christian Guellerin Executive Director, L’Ecole de design Nantes Atlantique Head of Cumulus Network Chair: Trevor Little Editor, WTR Magazine
Spare Parts The Past, the Present and the Future António Andrade Chair, ECTA’s Design Committee Vieira de Almeida & Associados
We all know what spare parts are: e.g. car body panels, bumpers and windscreens which need to match the component being replaced. The issue lies in the long-time discussion regarding harmonization and the way Europe keeps playing “hide and seek” with the various stakeholder groups. Challenge: Bring the issue back to the EU agenda and join ideas, brainstorm, trigger the topic once again and try to find a solution.
The question of whether spare parts and design rights can be seen as anti-competitive or an abuse of dominant position through a design right was raised in early days, in two cases: Case C-238/87 (Volvo),  Case 53/87 (Maxicar/Renault), 
Spare parts with Design RightsSimple spare parts Or Are spare parts …
Case C-238/87 (Volvo),  Case 53/87 (Maxicar/Renault),  anti-competitive an abuse of dominant position Are spare parts …
The harmonization process for the legal protection of industrial models started in June 1991 with the European Commission's “Green Book” Three main objectives: The harmonization of national systems as to this protection by means of a directive. The creation of a European Community model – unique legal title valid in the entire European Community territory. The provision of this protection in parallel with copyright protection.
Legal protection of designs finally became a reality with the Directive 98/71/EC. Article 14 : Member States maintain existing legal protection as to the use of spare parts for repair with the possibility of modification if it leads to the liberalization of the market. Why? Politics, Lobbies, Contradictory interests. Practical result of this provision: A hole in the harmonization process. Spare parts still seen as bundle of national rights.
So, what do we have today? 10 Member States have liberalized (no design protection). 17 Member States extend design protection to spare parts. Full protection Liberalized Sui generis regime
Commission Perspective Design protection for spare parts is totally unsatisfactory from an internal market point of view. Mixed protection regime is creating distortions of prices and trade in the Internal Market: resources and production are not allocated on the basis of competitiveness and production is not determined by market mechanisms.
As a consequence, in 2004, the Commission released: European Commission Proposal for Directive of the European Parliament and of the Council amending Directive 98/71/EC on the Legal Protection of Designs Extended Impact Assessment to explain its findings
Extended Impact Assessment Full liberalization i.e. no design protection for must-match spare parts across the E.U.. System seeking a short term of design protection Design protection for only a limited period of time. After this period, any third party should be free to produce and/or market. Remuneration system for the use of protected designs, including the appropriate level for remuneration Independent producers could produce spare parts in exchange for a reasonable remuneration to be paid to the holder of the design right Combination of both the systems previously mentioned a short term of design protection and a remuneration system.
“Repair Clause” Conclusion (…) Not to extend design protection to spare parts in the aftermarket is the only effective option in order to achieve complete harmonisation in the internal market on the principle of liberalisation, in line with Commission’s intention in the original proposal in 1993 and the spirit of the Block Exemption Regulation. (…) (…) The other options will imply no sufficient change to the current unsatisfactory situation and will render it either more unsatisfactory by introducing extended protection in those MS where the aftermarket in spare parts is liberalised or more complex by introducing a legally uncertain remuneration system.(…)
Exclusive rights covering the use of designs for the production and sale of new vehicles are sufficient to reward their investment in design and to maintain a strong incentive to innovate. Positive impacts of all the following aspects: Environmental; Competition, Consumer and prices, Innovation, Employment and Safety; Market structure; Competitiveness; Legal certainty; and Administrative costs. “Repair Clause” Conclusion
Since 2004, no further developments were truly registered. The issue remains unresolved and harmonization unachieved. And the Future? Is “full protection” seriously hindering the market and competition? Maybe it is. Is total liberalization really in accordance with the European protectionist model of IPRs? Maybe not.
Up to this point, two things can be affirmed with certainty: Full protection for the majority of the countries, inspired in a protectionist system embraced by Europe regarding IPRs Full liberalization for the rest of the countries (with the exception of Greece with its particular system). Mixed protection regime ( Europe fell in 2 extremes) Difficult harmonization
The following questions need to be asked: How do we balance the exclusive rights protection and the idea of effective and free trade? When should must-match parts be protected? When should it not? Is liberalization the only answer?
Overall, the issue is not dead! The challenge here is to resuscitate it, by stirring you and Europe to find a solution, regardless of all the lobbies, interests and political pressure it undeniably involves. There is still a lot more to do. IP deserves that commitment and hard work in order to continue to fight for harmonization