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Spare Parts The Past, the Present and the Future António Andrade
Spare Parts The Past, the Present and the Future
António Andrade
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 lays on the long time discussion regarding harmonization and the
way Europe keeps playing “hide and seek” with the group of interest involved.
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 on whether spare parts and design rights can be seen as an anti-
competitive or an abuse of dominant position through a design right was raised
in early days, in in two cases:
• Case C-238/87 (Volvo), [1988]
• Case 53/87 (Maxicar/Renault), [1988]
Spare parts with Design Rights Simple spare parts Or
Are spare parts …
• Case C-238/87 (Volvo), [1988]
• Case 53/87 (Maxicar/Renault), [1988]
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: MS 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 purposes.
• 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 prices and trade distortions 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 aspects:
• Environmental,
• Competition, Consumer and prices, Innovation, Employment and Safety,
• Market structure,
• Competitiveness,
• Legal certainty,
• Administrative costs
“Repair Clause” Conclusion
Since, 2004, no further developments were truly registered. The situation
remains unanswered 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
