The EU's intention to follow the pattern set in connection with trademarks in the design field by issuing a directive to harmonize design laws in the Member States and a regulation to create an alternative EU-wide means of protection was reported in our Information Letter N.S. 181. Progress has, however, been delayed by disagreements as to the protection that such regimes might provide for spare parts, for example for automobiles. In order to avoid further delay, the Council of Ministers now proposes, in the short term, to proceed first with a harmonization directive and in that context to leave the spare parts issue to national law. Clearly this issue will need to be revisited before a regulation can be adopted. The revised proposal of the Council of Ministers, which must be approved by the European Parliament before it can become law, will provide a maximum duration of protection of 25 years, and will require that for protection the design must be novel and have some element of "individual character" in that its "overall impression" on the user is different from what was available to the public previously. The definition of novelty is somewhat curious. It reads as follows:


Additionally, it is specifically provided that disclosure under explicit or implicit conditions of confidentiality does not count to destroy novelty.

Contrary to recent fashion in some other countries, the directive makes no explicit distinction between aesthetic and functional designs. It does, however, provide that there shall be no protection for features of appearance that are dictated solely by a technical function or in most cases for features required to permit the protected articles to interconnect with another.