Section IV will discuss the issues arising. Section III will analyse and critique the CJEU’s reasoning across the two cases. Section II will summarize the two rulings. The aim of this article is to assess what may lie behind these difficulties and consider the implications for future design case law. How did the CJEU reach these conclusions? Despite applying a range of interpretative techniques, the reasoning in both judgments is significantly flawed. In both cases, however, the CJEU has adopted interpretations of the CDR which make significant and somewhat unexpected inroads into the design rightholder’s exclusive rights. The CJEU has not heard many design cases, and Nintendo and Acacia are among the first to address genuinely substantive questions over what EU design law does, or does not, protect.
1 The second, in joined cases Acacia v Audi and Acacia v Porsche, concerned the ‘repair clause’ at Article 110(1) CDR. The first, in joined cases Nintendo v BigBen Interactive GmbH, BigBen Interactive SA, concerned the ‘citation’ defence at Article 20(1)(c) CDR. In late 2017, the Second Chamber of the Court of Justice of the European Union (CJEU) decided two important preliminary references affecting the scope of design protection under the European Union (EU) design regime.
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