Those interested in EU design reform will be aware that Regulation EU 2024/2822 and Directive (EU) 2024/2823 was recently published in the Official Journal before coming into force on 1 May 2025. They deal with a number of reforms, including renaming “Community designs” as “European Union designs”. However, one more substantive amendment caught our eye.

When it was first enacted, the general rule under the 2002 designs regulation was understood that where a design was first disclosed in such a way that, in the normal course of business, the disclosure could reasonably have become known to the circles specialised in the relevant sector, it could benefit from EU protection, regardless of where it was first disclosed. However, the regulation was amended in 2004 to include a new Article 110a which stated at paragraph 5 that “a design which has not been made public within the territory of the Community shall not enjoy protection as an unregistered Community design”. 

While added in relation to the enlargement of the EU at that time, some courts construed the amendment to mean that designs first disclosed outside of the EU could not benefit from the unregistered design right. The interpretation and effect of this article became even more important after Brexit, for both EU and UK designers, in assessing whether a disclosure would attract a UK or a Community unregistered design right and therefore where a first disclosure should be made. There has been considerable academic and practical discussion on the position since 31 December 2020, with the method of simultaneous disclosure being favoured in the absence of any court guidance (we're yet to hear a case in the UK that deals with this specific issue). 

The new Regulation deletes this confusing wording, suggesting that disclosures taking place outside of the EU (e.g. at London Fashion Week) would not prevent the EU design right from coming into existence. 

The EU’s intention may have been aimed at making unregistered design protection more freely available for designs first disclosed outside of the EU. Our view, particularly for designers making disclosures in the UK that may seek to rely upon the geographically broader EU right, is that some caution should remain. 

So what should you do if you're a designer operating both inside and outside of the EU? We suggest that continuing with simultaneous disclosure (i.e. first showing the design in both the UK and EU on the same day, even if only digitally/online), at least until there is clear further guidance. We will keep you informed!