The ECJ has ruled on the conditions in which the appearance of a part of a product (or “partial design”) may be protected as an unregistered Community design.

Responding to a preliminary reference from the German court, the ECJ has ruled that:

  • Article 11(2) of the Community Designs Regulation (6/2002/EC) must be interpreted as meaning that when images of a product are made available to the public, this also entails making available a design of a part or component of that product, provided that the appearance of the part or (for a complex product) the component is clearly identifiable at the time when the design is made available.
  • It will only be possible to examine whether that appearance satisfies the requirement of individual character if the part or component constitutes a visible section of the product or complex product, clearly defined by particular lines, contours, colours, shapes or texture.

In the national proceedings, the racing car manufacturer Ferrari was suing the defendant, a company that offered racing car personalisation services, for unregistered Community design infringement arising from its sale of personalisation kits. The German court had dismissed the claims on the ground that two of the alleged design rights did not arise, and the third was not infringed. Ferrari appealed, and the appeal court referred the present questions to the ECJ. The questions were, first, whether an unregistered Community designs could arise in individual parts of a product as a result of disclosure of an overall image of a product; and, if so, what legal criterion should be applied to assess individual character when determining the overall impression of a component part of a complex product. In relation to the second question, it asked whether the criterion could be whether the appearance of the component part was not completely lost in the appearance of the component product, but instead displayed a certain autonomy and consistency of form so that one could identify an aesthetic overall impression that was independent of the overall form.

The ruling is likely to make it easier for designers of complex products to rely on unregistered design right, as it means that the right can arise in a component part of a complex product even if the overall design has not been made available to the public.

Case: Ferrari SpA v Mansory Design Holding GmbH (Case C-123/20) EU:C:2021:889 (28 October 2021)