Circular Designs: Is (European) Design Law Fit for the Environmental Crisis?

The world is increasingly and poignantly aware of the urgency of dealing with global environmental challenges, including the massive amounts of waste now threatening our ecosystems, from plastic, textiles, food, electronics, construction, etc. The product design industry, driven by the “take-make-waste” logic, characteristic of the linear economy, is one of the major contributors to this accumulation of waste. According to the European Commission “[p]roduct design does not sufficiently take into account environmental impacts over the life cycle, including circularity aspects”, resulting in frequent replacement of products, and increased energy and resource use in producing and distributing new products and disposing of old ones (1).
Against this background, it seems appropriate to look for alternatives to the existing design law. The EU sui generis design regime was a response to the needs of the last decades of the 20th century, dominated by overproduction, saturated markets and exuberant consumerism. The EU design protection law is focused on design as a means for securing distinction and differentiation of products, meant to reach the customer with an increasing number of new products, which feature small changes and a short market life. Its primary aim is to stimulate creativity in designs and development of new products and to reward investment in the creative effort to produce the individual face of products on the market (2). Is this the kind of design the world still needs in the 21st century? As announced by Ursula Von der Leyen, Europe needs the New European Bauhaus that connects the
European Green Deal to our living spaces and experiences – i.e. enriching, sustainable, inclusive design.
The pending EU legislation on circular economy mandates that product design adopt a new logic. The circular economy is built on the principle of extended product life, through reuse, recycling, refurbishing, in other words, it seeks to close or to slow down the resource loop. Will existing industrial design laws of materials and goods stand in the way of implementing the circular economy transition with the urgency dictated by the climate crisis? Several of its norms may raise red flags in this regard, including the degree of functionality permitted by design law, duration of protection, registration requirements and others.
This article seeks to contribute to scholarship relating to the compatibility of circular economy policies with design law. The first part will consider the policy goals of the circular economy legislation as they relate to industrial design. It will consider the role of product design in an economy that strives to de-emphasize consumption in terms of quantity and instead focuses on product use and features. The second part will evaluate, de lege lata, existing design law norms in terms of whether they promote or impede circular economy policy goals. De lege ferenda, we will outline a proposed regime that aims to incentivize design of products with an extended lifecycle, capable of reuse, upcycling or recycling at their life’s end.