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Drexl, Josef --- "Counterfeiting and the spare parts issue" [2012] ELECD 955; in Geiger, Christophe (ed), "Criminal Enforcement of Intellectual Property" (Edward Elgar Publishing, 2012) 369

Book Title: Criminal Enforcement of Intellectual Property

Editor(s): Geiger, Christophe

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849801461

Section: Chapter 18

Section Title: Counterfeiting and the spare parts issue

Author(s): Drexl, Josef

Number of pages: 17

Abstract/Description:

The question of how to harmonize domestic design law regarding spare parts is one of the most disputed issues of European intellectual property law. The question is of primary importance to the automotive industry in particular. Design protection enables individual car manufacturers to control the aftermarket for such parts. Yet, the topic also has a consumer protection dimension; spare parts that are not manufactured under the control of the original car manufacturer may be of lower quality and harm consumer interests when consumers are misled about the origin of the product. When the European Design Directive was adopted in 1998, Member States heavily disagreed on whether and to what extent there should be protection for spare parts. For the years to come, the Directive left it to the Member States to resolve the matter autonomously under domestic design law. In 2004, when the Commission was required to report on the functioning of the Directive, the Member States were still deeply divided. Nine States (Belgium, Hungary, Ireland, Italy, Latvia, Luxemburg, the Netherlands, Spain, the UK) had adopted liberal regimes that provide for design protection for spare parts in principle but allow for the use of parts from alternative sources for repairing the product (so-called ‘repairs clause’). The majority of Member States (Austria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Lithuania, Malta, Poland, Portugal, Slovakia, Slovenia, Sweden) granted full exclusivity of the owner of the design right over spare parts. Greece had a repairs clause, but provided for a right of remuneration to the owner of the design right.