An Empirical Analysis of the Design Case Law of the EU Member States

Abstract

This article empirically examines the substantive decisions on all types of design rights from the courts of the 28 Member States since the entry into force of the Design Directive and the Design Regulation, up to and including August 2017. The article tests several hypotheses. Firstly, it uses descriptive statistics to examine claimants’ relative use of the type of design right, and the relationship between the type of design right as a function of the dimension of the design litigated upon. Secondly, the article uses inferential statistics to analyse the presence of differences in the proportion of designs found to be valid and infringed as a function of the level of the courts, the type of design right, the dimension of design and the level of specialisation of the judges. The article finds that overall the EU design system has been effective, and we use our analysis to highlight some further possible improvements.

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