The Repair Clause and Spare Parts After the EU Design Reform

The EU design reform, centred on Regulation (EU) 2024/2822, introduces a permanent repair clause that limits design protection for so-called must-match spare parts – components that must visually replicate an original part to restore the appearance of a complex product. Phase I of the reform has applied since 1 May 2025, meaning that rights holders, aftermarket manufacturers and distributors are already operating under the new rules, while Phase II procedural changes take effect from 1 July 2026. For international businesses supplying or sourcing spare parts in the EU, understanding the precise scope of the clause – and its remaining ambiguities – is now a matter of immediate commercial and legal priority.

The Legislative Architecture: From Fragmentation to a Unified Framework

Before the reform, the repair clause question was one of the most contested fault lines in EU intellectual property law. The Community Design Regulation of 2002 left the repair clause in a provisional state, with different EU Member States applying divergent national rules. Some jurisdictions offered aftermarket manufacturers a degree of freedom; others allowed design right holders to enforce against spare parts suppliers without restriction. This fragmentation created substantial compliance uncertainty for any business operating across borders.

Regulation (EU) 2024/2822 resolves this by establishing a single, permanent repair clause at EU level for registered and unregistered EU designs. The accompanying Directive (EU) 2024/2823 requires Member States to align their national design laws accordingly, with a transposition deadline of 9 December 2027. Until that deadline, national law divergences persist for purely domestic designs, which carries its own set of cross-border risks discussed below.

The reform also significantly broadens the subject matter eligible for design protection, extending coverage to animations and graphical user interfaces – areas previously uncertain. This expansion is relevant to spare parts litigation because it raises new questions about whether dynamic visual elements of a product interface could in principle be treated as a "component part" requiring repair-clause analysis.

The Permanent Repair Clause: What It Actually Says

The repair clause under Regulation (EU) 2024/2824 exempts from design infringement the use of a design that constitutes a component part of a complex product, where that use is for the purpose of the repair of the complex product so as to restore its original appearance. The key phrase is "must-match": the clause applies only where the visual appearance of the spare part is dictated by the need to conform to the appearance of the complex product being restored.

Several conditions circumscribe the exemption:

• Purpose limitation: the part must be used specifically to restore the complex product's original appearance, not to modify or upgrade it.
• Must-match dependency: the visual characteristics of the component must be constrained by the original design – the supplier cannot freely choose a different appearance.
• Downstream transparency: the regulation requires that the end consumer be adequately informed of the origin of the spare part, preserving the relevance of trade mark law and consumer protection rules alongside design rights.

Critically, the repair clause does not apply to accessories, optional add-ons, or components where the manufacturer has creative freedom in the visual design. Drawing the boundary between a "must-match" part and an optional component will be one of the primary battlegrounds in future IP litigation.

Open Legal Questions and the Role of the CJEU

Despite the reform's ambition for clarity, several interpretive questions remain unresolved. The CJEU has not yet had occasion to interpret the permanent clause as enacted in Regulation (EU) 2024/2822, and its earlier case law on design protection – developed under the prior framework – will need to be re-evaluated for continued relevance.

Among the most contested open questions:

• Scope of "complex product": the regulation defines this term, but its application to digital products, software-integrated hardware and products with animated GUIs raises genuinely novel issues. If an animated interface forms part of a product's visual identity, could a replacement screen that replicates that animation be a must-match spare part? The European Commission has not issued binding guidance on this specific point.
• Aftermarket kits and assemblies: where a repair kit bundles a must-match component with ancillary parts, the extent to which the exemption covers the whole kit – or only the qualifying element – is not definitively settled in the text.
• Interaction with copyright infringement claims: in several jurisdictions, design-protected works may simultaneously attract protection under copyright law. The repair clause operates within design law; it does not create a parallel exemption from copyright infringement liability. Aftermarket manufacturers who assume that the repair clause gives them a clear path may still face copyright claims, particularly for components that embody artistic expression.
• Unregistered EU designs (UEUD): the reform's new terminology introduces both the Registered EU Design (REUD) and the Unregistered EU Design (UEUD). The repair clause applies to both, but the evidentiary burden of establishing design subsistence and disclosure for unregistered rights adds a further layer of complexity in enforcement and defence.

For businesses engaged in design registration strategies, the practical implication is that a design portfolio covering complex products should now be reviewed not only for what is protected but for whether each registered element would be subject to the repair clause – potentially rendering some registrations less commercially valuable than assumed.

If you are assessing the impact of these changes on an existing design portfolio or licence structure, our team is available to discuss your specific situation. Please write to info@ferrazwhitmore.com or visit our contacts page to arrange a consultation.

Practical Impact on Aftermarket Manufacturers and OEMs

The permanent repair clause creates a materially different competitive environment for original equipment manufacturers (OEMs) and independent aftermarket suppliers alike. For OEMs, the previous ability to use design registrations as a tool for controlling the spare parts market – and in some cases excluding independent repairers entirely – is now curtailed at EU level. For independent suppliers, the clause provides a statutory defence, but one that must be actively demonstrated and is subject to the conditions set out above.

Several practical consequences deserve attention:

• Contract review: supply agreements, distribution contracts and licensing arrangements that were structured around design exclusivity in the spare parts context may need to be revisited. Exclusivity provisions that were commercially viable pre-reform may now be unenforceable or commercially undermined.
• Customs enforcement: EU customs authorities act on the basis of intellectual property rights recorded at the EU Intellectual Property Office (EUIPO). If an OEM has recorded a design that now falls within the repair clause, the grounds for border detention of legitimate spare parts shipments will be significantly narrowed. Practical protocols for interacting with customs – including the information to be provided by importers – will need updating.
• Enforcement strategy: rights holders who seek to rely on design registrations to restrict spare parts will need to demonstrate that a given component falls outside the must-match category. This will typically require expert evidence on design freedom, product architecture and market practice – the kind of analysis that underpins complex IP litigation strategies.
• Text and data mining: while not directly part of the spare parts debate, the reform's broader modernisation of EU design law intersects with the growing use of text and data mining tools for prior art searches, design similarity analysis and portfolio auditing. Businesses investing in these tools gain an analytical advantage in both prosecution and litigation.

For a concrete illustration of how design portfolio adjustments have been approached in a cross-border context, our case note on a design portfolio migration in Germany provides relevant background on the strategic considerations involved.

Cross-Border Implications: The Directive Gap and National Divergence

Businesses operating across the EU must hold two frameworks in mind simultaneously. Regulation (EU) 2024/2822 applies directly and uniformly to EU-level designs (REUDs and UEUDs). However, national design rights – which remain significant in many jurisdictions, particularly for products distributed primarily in one or two Member States – continue to be governed by national law until Directive (EU) 2024/2823 is transposed.

With a transposition deadline of 9 December 2027, there is a window of up to two and a half years during which national design laws across the EU may diverge in their treatment of the repair clause. Some Member States may transpose early and align promptly; others may wait. Businesses that rely solely on national registrations, or that combine national and EU-level rights in their portfolio, need to map this jurisdictional patchwork carefully.

There is also a specific consideration for businesses operating in sectors regulated by bodies such as ESMA or the EBA – for example, manufacturers of financial terminals, payment hardware or regulated medical devices. Where design rights interact with product approval processes, changes in IP enforcement posture can have downstream effects on regulatory compliance frameworks that require careful coordination between IP counsel and regulatory teams.

Our intellectual property practice works across EU and Member State jurisdictions to help clients understand the exact configuration of their rights and exposure in this transitional period. If cross-border complexity is a factor in your situation, we welcome the opportunity to discuss it. Contact us at info@ferrazwhitmore.com.

Phase II and the New Representation Regime

The reform's Phase II, applying from 1 July 2026, introduces a new design representation framework through EU Design Implementing and Delegated Regulations. This phase is primarily procedural, governing how designs are filed and represented at the EUIPO, but it has substantive consequences for spare parts disputes.

The new regime allows electronic, animated and three-dimensional formats for design representations. For complex products, this means that OEMs will be able to register designs in ways that more accurately capture dynamic or three-dimensional features – potentially strengthening the precision of what is claimed. Conversely, the availability of animated and 3D representations may make it easier to establish – or contest – whether a component truly must-match the registered design.

Businesses with existing design portfolios should plan a review in advance of July 2026 to assess whether their registrations would benefit from updated representations under the new regime, and whether any pending applications should be deferred or accelerated to align with Phase II procedural rules. The intersection of procedural deadlines and substantive strategy is a recurring complexity in international design registration planning.

Strategic Recommendations for International Clients

The reform creates both risk and opportunity, depending on a business's position in the value chain. The following considerations apply broadly, though individual circumstances will always govern the appropriate course of action:

• Audit existing design portfolios against the must-match test. For each registration covering a component part of a complex product, assess whether a competitor could reasonably invoke the repair clause. Where registrations primarily served to restrict the aftermarket, their continued commercial value warrants honest reassessment.
• Review licence agreements and enforcement correspondence. Cease-and-desist letters and licensing demands based on must-match components may now be legally unsustainable. Sending unsupported enforcement correspondence carries litigation and reputational risk; IP litigation involving the repair clause is likely to increase as the new framework beds in.
• Assess trade mark strategy as a complementary tool. Because the repair clause operates within design law and does not override trade mark rights or copyright claims, an integrated IP strategy – covering design, trade mark and where applicable copyright – may offer more durable protection for complex product designs than design registration alone.
• Monitor CJEU and national court developments. The interpretation of Regulation (EU) 2024/2822 will be shaped by litigation. References to the CJEU on the scope of the must-match test, the meaning of "complex product" in novel contexts, and the interaction with copyright are to be expected within the coming years. Monitoring these developments through EUR-Lex and national law databases should be embedded in clients' IP management processes.
• Plan for Phase II well in advance. The July 2026 effective date for new representation formats and procedural rules is not distant. Filing strategies for new products – particularly those with animated interfaces or complex three-dimensional forms – should already account for the expanded possibilities and requirements of the Phase II regime.

For businesses that are actively involved in disputes or that anticipate enforcement actions in connection with spare parts, our litigation and arbitration practice can assist in assessing the strength of potential claims and defences under the reformed framework. We invite you to reach out at info@ferrazwhitmore.com or through our contacts page to discuss how these developments affect your position.

Outlook

The permanent repair clause represents a significant rebalancing in EU design law – one that the European Commission and the European Parliament shaped over many years of debate. Its implementation through Phase I from 1 May 2025 marks the end of the provisional, fragmented approach that had characterised EU policy since the original Community Design Regulation. However, the reform's full effect will only become clear as national courts and the CJEU begin to apply the new rules, as Member States transpose the Directive, and as Phase II procedural changes take hold from mid-2026.

For the time being, businesses in the EU spare parts market are navigating a landscape where the statutory framework has changed but interpretive certainty has not yet arrived. Proactive legal review, portfolio adjustment and enforcement strategy adaptation are the measures most likely to serve clients well during this period of transition.

Disclaimer: This publication is provided for informational purposes only and does not constitute legal advice. The information herein should not be relied upon as a substitute for professional legal counsel tailored to your specific circumstances. Ferraz & Whitmore assumes no liability for actions taken or not taken based on the contents of this material. For advice regarding your particular situation, please contact info@ferrazwhitmore.com.