register, and align European and national procedures. Some changes aim to align design protection with trademark changes occurred in 2017. Nevertheless, in what concerns the controversies of the overlapping of protections by copyright and design, there is no evolution. The EUDR and the EUDD reflect the guidance given by the CJ in Cofemel and Brompton Cases. The main change regarding this issue in EUDR is that Article 96, (2) doesn’t refer to the national legislation of the Member States. It now states that a “design protected as an EU design shall also be eligible for protection by copyright as from the date on which the design was created or fixed in any form, provided that the requirements of copyright law are met.” The same happens with EUDD, Article 23, that deals with the relationship to copyright, determines that a “design protected by a design right registered in or in respect of a Member State in accordance with this Directive shall also be eligible for protection by copyright as from the date on which the design was created or fixed in any form provided that the requirements of copyright law are met”. There is no reference to the law of the Member States, as occurred with Article 17 of Directive 71/98. If the CJ considers, both, “originality” and “work” concepts of the EU, it makes no sense to insist on a remission to national law of Member States.86 Nevertheless, the harmonization that was granted by Cofemel was insufficient, as the erratic case law in the EU in relation to cumulative protection of design and copyright proves. This means that in relation to this subject, the design reform doesn’t add anything to what happened after the Cofemel ruling.87 Getting back to food presentation, in its three-dimensional shape, this means that in Portugal and in all EU countries, it can be protected cumulatively by copyright and design, if the requirements of both sets of rules meet. Anyway, for the time being the concept of “originality” and of “work”, because of the inconsistencies of the Cofemel ruling, may lead to uncertainty. Doubts remain 86 Consideration 36 of the Regulation 2024/2822 determines that “Given the advanced harmonization of copyright law in the Union, it is appropriate to adjust the principle of cumulation of protection under Regulation (EC) No 6/2002 and under copyright law by allowing designs protected by EU design rights to be protected as copyright works, provided that the requirements of copyright law are met”. 87 In the same sense, KUR, Annette, ENDRICH-LAIMBÖCK, Tobias, HUCKSCHLAG, Marc, “Position Statement of the Max Planck Institute for Innovation and Competition of 23 January 2023 on the ‘Design Package’ (Amendment of the Design Regulation and Recast of the Design Directive) (January 23, 2023). Max Planck Institute for Innovation & Competition Research Paper Nº 23-05, Available at Microsoft Word - MPI_ Opinion on the Design Package_01-25_clean.docx (last access, 10.04.2025); see also SILVA, P. SOUSA e, “A revisão da disciplina europeia dos desenhos ou modelos. Traços essenciais”, Revista de Direito Intelectual, 1, 2024, pp. 93-104, p. 103; FIDALGO, V. PALMELA, “O novo regime jurídico europeu em matéria de desenhos e modelos. As alterações substântivas”, Revista de Direito Intelectual, 2, 2024, pp. 171-193, pp. 190-193. 252 MARIA VICTÓRIA ROCHA
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