Under-Referred, Under-Reasoned, Under-Resourced? Re-Examining EU Design Law Before the Court of Justice and General Court

摘要

EU design law, as enacted by the Designs Directive and Community Design Regulation, has now been in effect in one form or another for over 14 years. However, despite the bold innovations, complexities and importance of the EU design regime, the subsequent development of EU design law has attracted relatively little detailed examination. Against the backdrop of growing interest in the process of the "Europeanisation " of IP law generally, this article will review how—from an institutional and methodological perspective—design law has developed before the Court of Justice of the EU and the General Court. Institutionally, it will demonstrate that a major role reversal has taken place between the Court of Justice and General Court in terms of leadership between the two EU-level courts in interpreting the new design regime. In terms of judicial methodology, through close re-examination of the General Court's case law and the underlying intentions and objectives for the EU design regime, this article will identify significant difficulties in the General Court's methods. Reflecting on possible explanations for the severely reduced role of the Court of Justice in the field of designs to date, this article will address the consequences of the General Court's methodological difficulties for the legitimacy of the General Court's rulings, their place in the overall EU design jurisprudence, and the implications for the process and effectiveness of harmonisation at Community and national levels. Reviewing potential causes of the deficiencies in the General Court's approach—including institutional shortcomings and constraints—this article will conclude by looking at impact of ongoing procedural and institutional reform at the General Court.