Design law – FAQ
What is a design?
The German Design Act provides protection for both two-dimensional “designs” (e.g. fabric design) and three-dimensional models. These must be designs or models of commercial objects that appeal to the aesthetic sense for colour or form. A prerequisite condition for protection is the novelty and distinctiveness of the object, i.e. resulting from creative activity of the designer. Since the new design law entered into force, the previous stricter requirements now demand a certain “level of originality”. Thus the new design law offers greater protection for physical forms.
For example, designs of technical devices, designs of consumer goods and packages can be protected.
However, under design law, which entered into force in 2003, separate parts of an end product, for example a car, can only be protected if they are visible during their intended use. This limitation results from the EU harmonisation. However, separate parts, such us a wing, a bonnet or a shock absorber can be protected as designs, as long as they fulfil the requirements for protection as separate parts.
What are the differences between design law and copyright law?
A design is – similarly to a utility design – an unchecked protective right, but there is no monopolist supervisory body for copyright in Germany. Design protection is usually created by an entry in the register (European protection for a limited period can also come into being without an entry) and when substantive prerequisites exist, whereas copyright protection is guaranteed by law. At the same time, it is “easier” for a designer to obtain protection of registered designs than protection by copyright, since the latter requires a significantly higher degree of creativity that exceeds the prerequisites novelty/distinctiveness necessary for protection of registered designs. Therefore, it is usually recommended for a designer to seek protection of registered designs, which can by the way exist parallel to protection by copyright.
Further substantial differences include the limited maximum validity period of protection of registered designs which amounts to a total of 25 years after the amendment of the German design law in 2003, as well as the possibility of collective registration of up to 100 designs or models for the same goods category. This means that for example 100 different fabric designs can be applied for in just one collective act of registration. In the case of a an unchallenged design, it is assumed that protection of registered designs exists, whereas the author basically has to present and prove authorship, that a sufficient degree of creativity exists, etc.
Based on the European Community Directive on design, as of April 2003 you can register Community designs that offer numerous cost-efficient possibilties and protection all over Europe regarding their prerequesites and validity and others.
How long is design right protection effective?
Starting with the day of registration the design is protected for a maximum of 25 years (registered Community design- 25 years; exploited unregistered Community design - 3 years) as long as the utility design is maintained, i.e. especially by paying the three renewal fees to the German Patent Office. In spite of the harmonisation of law in the European Union there is still no German unregistered design.
What territorial protection does a design offer?
At the moment there is no worldwide design, but there is a Community design effective for the whole of Europe. A German design is protected in Germany. Additionally, at international level, the Hague agreement provides protection for commercial designs or models.
Can a design be announced before registration (novelty period of grace)?
Whereas in Germany inventions have to be registered before they can be announced in any way whatsoever, there is a so called period of grace of 12 months for designs (and utility designs) entering into force with the new German Design Act.
Under certain conditions which absolutely have to be fulfilled (especially: publication by applicant) designs can be announced prior to their registration.
How does a design come into being?
German designs come into being by means of a registration at the German Patent Office after an application has been filed. For this purpose there is a form by the German Patent and Trademark Office (http://www.dpma.de). You should consult an expert in case a collective registration is advisable.
What is the course of the registering process of a design?
At first each application received undergoes a primary check, the purpose of which is merely to state whether there are evident lacks, e.g. whether any documents are lacking.
At the end of the checking procedure an acceptance certificate or a rejection is issued. Then a design is published or entered in the Register of Designs.
Is it possible to challenge a design by means of interference proceedings at low cost?
Contrary to patent or trademark law, there is no deadline for interference proceedings in the area of design law.
Contrary to the utility design cancellation procedure before the Patent Office, the first step against a design consists in a costly petition to cancel its entry in the register before a Regional Court.
It is then determined whether all necessary substantive protection prerequisites for registration are fulfilled, i.e. novelty and innovation.
What do we need to register your design?
Usually a sketch, a description and if needed a visual model are necessary. In some cases we need further details which we cannot generally state due to the complexity of the given object.
In the initial phase we only need general information on the area in question (furniture, fabrics, consumer goods, technical design, package, etc.) to plan further proceedings so that our expert in charge can contact you and settle further details with you, including estimation of costs.
Special links on this topic:
EU Directive on Community Design