The new right to repair directive – How does it interact with IPRs?

The Directive (EU) 2024/1799 on Common Rules Promoting the Repair of Goods, more commonly known as the Right to Repair Directive (“Directive”) entered into force on 30 July 2024. 

The new rules have brought changes for manufacturers, distributors and consumers, as the EU continues pursuing its ongoing goal to promote more sustainable consumption. This time, the focus is on introducing rules to extend the lifetime of consumer products through increased repair and reuse of products. 

Despite promoting a valuable shift from linear to circular economy, the Directive doesn’t fully address some important questions relating to intellectual property rights (“IPRs”). We give a general overview of the new changes and shed light on some relevant IPR considerations.  

What changes does the Directive introduce?

The aim of the Directive is to promote circular economy by shifting the focus from replacing consumer products to repairing them, when defects appear or when the products are reaching the end of their life cycle. The most important changes introduced by the Directive are the following: 

• Obligation to repair: The manufacturers have the obligation to repair certain goods as listed in the legal acts provided in Annex II of the Directive. Currently these include goods such as household washing machines and dishwashers, refrigerating appliances, electronic displays and mobile phones, but additional product categories may be included over time. 
  
  The repair must be provided free of charge or for a reasonable price, and within a reasonable time. A replacement product may be offered to the consumer during the repair period. If the repair of the products is impossible, the obligation to repair does not apply and the manufacturer may offer the consumer a refurbished product. Manufacturers that make spare parts and tools available for goods in scope of the Directive are also obliged to offer those at a reasonable price that does not deter repair.
  
  The obligation to repair is primarily placed on the manufacturer of the good. However, if the manufacturer is based outside of the EU, does not have an authorised representative, and if there is no importer for the good, the obligation may finally be placed on the distributor.
   
• Obligation to provide repair information: The Directive sets an obligation, primarily for manufacturers and secondarily for others, to provide information to consumers via free access websites on the indicative prices that are charged for the typical repair of goods. In addition, information on the repair services must be provided free of charge and in an easily accessible, clear and comprehensible manner. Manufacturers should also actively inform consumers of their repair options.
   
• Prohibition to make repair more difficult: The Directive prohibits manufacturers to make it more difficult to repair the goods by e.g. using contractual clauses, hardware or software techniques that impede the repair of goods. However, this does not apply if justified by legitimate and objective factors, including the protection of IPRs. 
  
  In particular, the use of original or second-hand spare parts, compatible spare parts and spare parts issued from 3D-printing shall not be impeded, provided that the parts conform with legal requirements and are e.g. safe and in compliance with intellectual property.
   
• Prohibition to refuse repair: Manufacturers shall not refuse to repair a product for the sole reason that its previous repair has been performed by others. Consumers may seek repair from any repairer as they choose.
   
• Extended liability: Finally, the aim of the Directive is not to restrict consumers’ right to choose between repair and replacement of defective products. Rather, the Directive aims to incentivise repair by extending the seller’s liability if repair is chosen under Directive (EU) 2019/771 on Certain Aspects Concerning Contacts for the Sale of Goods (“Sale of Goods Directive”). 

Relevant IPR considerations 

Despite the inevitably positive effects of the Directive, there have been discussions around the effect the changes may impose on IPRs. 

Until now, many businesses may have designed products in ways that limit the consumers actual possibilities to repair or amend the products. These strategies may include e.g. withholding access to product manuals and repair information, incompatibility strategies, restricting access to essential product components and protecting products or parts thereof with IPRs. Regarding IPRs, the tactics may include pursuing strategies where trademark, copyright, design and patent rights are invoked against third party spare part suppliers or repairers to prevent them from entering the market or providing repair services. In addition, right holders may decide to e.g. protect specific repair information as trade secrets and refuse the disclosure of such information. Measures like these may have created effective barriers against third parties and thus secured the economic interests of the manufacturer, who through measures like these might have managed to secure control of the product. 

Now, in the effort for a circular economy, the Right to Repair Directive obligates manufacturers to facilitate repairs by providing certain information and removing barriers that hinder repairability. These changes give rise to certain IPR related concerns, as the Directive does not provide clarity on the delicate balance between lawful and unlawful amendments and repairs. 

For example, the use of a trademark without the proprietor’s consent typically constitutes trademark infringement. However, there are exceptions to this rule. The doctrine of trademark exhaustion, which has been established under Article 15 of the Trademark Directive (EU) 2015/2436, provides that the trademark owner cannot prohibit the use of the trademark for goods that have already been placed on the market. Under this exception resellers of e.g. refurbished products may re-commercialise trademarked goods under certain conditions, provided that they have not been substantially modified or their quality has not been impaired due to e.g. repair measures. Selling inferior products under someone else’s trademark could naturally affect the goodwill and trust of consumers. 

Also, other IPRs, such as copyrights and patents, may become relevant in this context. Today many household appliances constitute not only hardware but also embed increasingly complex software, which may be protected with copyright. Repair measures that entail modifications, altering or making copies of the software may amount to copyright infringement. Even though Article 5(1) of the Software Directive 2009/24/EC provides the lawful software acquirer the right to correct errors when necessary for the use of the software, such rights can be limited by contractual means. Thus, the risks of infringement may increase, if modification measures cannot be legally justified. The recompilation of a patent protected good could likewise amount to patent infringement, as could the unauthorised reproduction of e.g. patent protected spare parts. 

Due to the lack of definitions and boundaries between lawful and unlawful repair measures, the Directive inevitably creates a grey area which gives cause to ambiguities and uncertainty. Nonetheless, those providing repair and refurbishment of goods will have to continue respecting the IPRs of the original manufacturer going forward. For instance, the repairers may wish to clearly disclose the measures performed and the parts used to distance the re-furbished product from the original manufacturer. 

It seems clear that the new Directive will affect the operational strategies of businesses. As the Directive forces manufacturers to provide information and remove certain barriers to facilitate repairs, businesses may need to adapt to the changes, especially given that in the future there may be a whole new market for refurbished and further commercialised products. Instead of focusing on robust defensive strategies, manufacturers might wish to consider building relationships with repairers and how to commercialise their IPRs in these new markets e.g. by negotiating licensing terms for the manufacturer’s spare parts.  

What’s next?

Member States will now have time to implement the Directive into national law and will have to apply it from 31 July 2026. Based on recent discussions, it is expected that the Commission looks to expand the scope of the Directive in the future. 

The Right to Repair Directive forms only a part of the initiatives presented by the Commission to improve reparability, reuse, sustainability and design requirements of products to promote a circular economy. Other relevant regulations also help promote a circular economy, such as the Ecodesign Regulation, which aims to significantly improve the sustainability of products placed on the market by setting ecodesign requirements for certain products. The Right to Repair Directive and the Ecodesign Regulation are closely linked and form both an integral part of the European Green Deal. For a more detailed analysis of the Ecodesign Regulation, please see the Bird & Bird article available here.

Despite the Right to Repair Directive promoting more sustainable consumption and contributing to EU wide environmental goal to make Europe the first climate-neutral continent by 2050, the Directive also raises IPR questions. Going forward, businesses may have to consider implementing new strategies to meet the obligations deriving from the Directive. In the end, clarifying guidance on the boundaries between lawful and unlawful repair measures will likely be defined in case law over time.