Repair clause

The repair clause is the rule that excludes from design protection the use of a component part of a complex product where it is used to repair that product so as to restore its original appearance. It chiefly concerns visible car body parts, glazing, headlamps and wing mirrors, known as ‘must match’ parts, whose shape must reproduce that of the original. Provided for on a transitional basis by Article 110 of Regulation (EC) No 6/2002 for the Community design, it is made general by the 2024 European reform and has been partly introduced into French law since 2023.

The mechanism and its scope

The clause does not affect the validity of the right but limits the rights it confers: the manufacturer of a spare part may produce and sell it without the authorisation of the holder of the design covering the vehicle or the part, provided only that the part is intended to restore the original appearance. The Court of Justice of the European Union holds that the exception applies to any part whose shape is dictated by the appearance of the complex product, and imposes on the manufacturer a duty of diligence, through clear notices and contractual undertakings, to ensure that downstream purchasers actually use the part for repair.

French law since 2023

French law had long protected visible parts through design and copyright, to the benefit of vehicle manufacturers. The Law of 22 August 2021 on combating climate change opened up this market from 1 January 2023 by supplementing Article L. 513-6 of the French Intellectual Property Code: acts intended to restore the original appearance of a motor vehicle or trailer fall outside the right where they concern glazing parts and, for other parts, where they are carried out by the equipment manufacturer that made the original part. A parallel exception was introduced in copyright. This liberalisation therefore remains partial, independent manufacturers being free only as regards glazing.

The 2024 European reform

Regulation (EU) 2024/2822 makes the repair clause a permanent feature of the EU design regime, adding an obligation to inform consumers, by a marking or any other means, of the commercial origin of the part. Directive (EU) 2024/2823 requires all Member States to adopt the same clause for their national rights, with a transitional period for national designs registered before its entry into force. French law will therefore have to extend its exception to independent manufacturers for all repair parts within the transposition period. The 2024 reform thus unifies a fragmented market.

Key points

The repair clause makes it possible to manufacture and sell visible spare parts without the design holder’s consent, provided they serve to restore the original appearance of a complex product. It is settled for the EU right, still partial in French law and set to become general through transposition of the 2024 Directive. For each part, the right relied on, its actual intended use and the indications of origin affixed should be checked.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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