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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Tuesday, June 08, 2004New Law on Design Protection in Germany.On June 01, 2004, a completely revised Act on Design Protection has entered into force in Germany. The German text of the Act can be accessed e.g. on the Transpatent web site.
The former Act was in fact a Copyright-style protection of designs against copying. Independent creations of the same subject-matter had been, at least in theory, possible without constituting an infringement. To the contrary, the new law creates an exclusive right of the creator of a design (or of his successor in title) to bar any third party from exploiting any infringing designs, whether bluntly copied or even created independently and without knowledge of the protected design. The new Act serves to cast the EU Directive 98/71/EG into national German Law.
More information is available [in German] on the web site of the German Patent and Trade Mark Office.
Highlights of the revised law are, inter alia: - A design shall be protected by a design right to the extent that it is new and has individual character; a design shall be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public before the date of filing of the application for registration or, if priority is claimed, the date of priority. In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration. - A design shall be considered new if no identical design has been made available to the public before the date of filing of the application for registration or, if priority is claimed, the date of priority. Designs shall be deemed to be identical if their features differ only in immaterial details; - A design shall be deemed to have been made available to the public if it has been published following registration or otherwise, or exhibited, used in trade or otherwise disclosed, except where these events could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the Community, before the date of filing of the application for registration or, if priority is claimed, the date of priority. The design shall not, however, be deemed to have been made available to the public for the sole reason that it has been disclosed to a third person under explicit or implicit conditions of confidentiality. - There is a novelty grace period of 12 months: A disclosure shall not be taken into consideration if a design for which protection is claimed under a registered design right of a Member State has been made available to the public: (a) by the designer, his successor in title, or a third person as a result of information provided or action taken by the designer, or his successor in title; and (b) during the 12-month period preceding the date of filing of the application or, if priority is claimed, the date of priority. This grace period shall also apply if the design has been made available to the public as a consequence of an abuse in relation to the designer or his successor in title. - The scope of the protection conferred by a design right shall include any design which does not produce on the informed user a different overall impression. In assessing the scope of protection, the degree of freedom of the designer in developing his design shall be taken into consideration. - The maximum term of protection is now 25 years. According to the EU Directive, until such time as amendments to this Directive are adopted on a proposal from the Commission, Member States are free to maintain in force their existing legal provisions relating to the use of the design of a component part used for the purpose of the repair of a complex product so as to restore its original appearance and shall introduce changes to those provisions provided that the purpose is to liberalise the market for such parts. However, Germany has not made use of this option.
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