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is the Community (EU wide) Registered Design repair clause broken?

22 December 2017

Automotive OEMs and other manufacturers of 'complex products' are unlikely to be happy with the pre-Christmas CJEU decision (C 397/16 and C 435/16) relating to luxury car wheel trims. However it may not be welcomed by spare parts suppliers either because of this:

"Any use of a component part which is not for the purpose of restoring a complex product to the appearance it had when it was placed on the market is, accordingly, excluded [i.e. falls outside the repair clause]. That is the case if... the replacement part does not correspond, in terms of its colour or its dimensions, to the original part, or if the appearance of a complex product was changed since it was placed on the market".

The CJEU also gave a 'due diligence' obligation to the aftermarket to ensure those buying protected parts are using them to repair/restore and not to pimp or customize. An appropriate term in the supply contract should usually do the trick. But nevertheless the supplier must still not sell a protected part where it knows or ought to know that the buyer would not be using it in the permitted way.

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