product so as to restore its original appearance through the insertion of a repair clause
similar to that already contained in Regulation (EC) No 6/2002 and applicable to EU designs
at Union level but explicitly applying to form-dependent component parts of complex
products only. As the intended effect of such repair clause is to make design rights
unenforceable where the design of the component part of a complex product is used for the
purpose of the repair of a complex product so as to restore its original appearance, the repair
clause should be placed among the available defences to design right infringement under this
Directive. In addition, in order to ensure that consumers are not mislead but are able to make
an informed decision between competing products that can be used for the repair, it should
also be made explicit in the law that the repair clause cannot be invoked by the manufacturer
or seller of a component part who have failed to duly inform consumers about the
commercial origin, and the identity of the manufacturer, of the product to be used for the
purpose of the repair of the complex product. That detailed information should be provided
through a clear and visible indication on the product or, where that is not possible, on its
packaging or in a document accompanying the product, and should include at least the
trade mark under which the product is marketed, and the name of the manufacturer.
(35a) With a view to preserving the effectiveness of the liberalisation of the spare parts
aftermarket sought by this Directive and in line with the case law of the Court of Justice
of the European Union, in order to be able to benefit from the repair clause exemption
from design protection, the manufacturer or seller of a component part of a complex
product is under a duty of diligence to ensure, through appropriate means, in particular
contractual means, that downstream users do not intend to use the component parts at
issue for purposes other than that of repair so as to restore the original appearance of the
complex product. This however should not require the manufacturer or seller of a
component part of a complex product to guarantee, objectively and in all circumstances,
that the parts they make or sell, are, ultimately, actually used by end users for the sole
purpose of repair so as to restore the original appearance of that complex product.
(36) In order to avoid that divergent conditions in the Member States regarding prior use cause
differences in the legal strength of the same design in different Member States, it is
appropriate to ensure that any third person who can establish that before the date of filing of
a design application, or, if a priority is claimed, before the date of priority, it has in good
faith commenced use within a Member State, or has made serious and effective preparations
to that end, of a design included within the scope of protection of a registered design right,