D within a triangle

Protection as design

The design is a special type of commercial performance. Choice of color and styling are crucial for the assessment of the protectability, the novelty and the individual character of a two-dimensional pattern or a three-dimensional model which is to be protected.

The condition for

a three years lasting, not prolongable pan-european community design protection is to make the protectable community design available to the public within the European Community. The creator has not only to finish the design but also has to publish it in a way that specialised circuits can obtain knowledge. The originator already obtains the copyright on his creation according to German Copyright act with finishing.

With a (community) design

its solely technical dictated features and characteristics, which are predefined by shape or by dimension in order to fulfill its function only after combination with other units, are not protectable (must fit). Protectable are products or several component parts (complex product) as well as the packaging, get-up, graphic symbols (as long as not illegal, abusive of rights or excluded according Paris convention), characters or replacement parts (mustmatch).

The application

for a German design right respectively a registered community design (RCD) has to be filed with the office (DPMA, OHIM). The application must include a request of registration, statements about the applicant, at least one reproduction of the design and a specification of the product. The application can incorporate a description, several reproductions, specifications about the creator and several examples (multiple application). In all cases a filing fee and a publication fee has to be paid. The protection starts after formalities examination with publication of the registration and of the reproductions.

The national scope of protection

is defined by features reproduced visible in the application. With publication the protection includes any design which does not produce a different overall impression to the informed user.

A (community) design is new

if no identical design has been made available to the public. Disclosures of the design by the designer or his successor in title are harmless within the grace period of twelve month. The individual character of a design is given, if no other known design produces the same overall impression to the informed user.

The duration of protection

in the case of a filed (Community) design is five years from date of filing. After that a registered (Community) design can be prolongated for another five years each. The maximum duration for a filed design protection is up to 25(!) years.

The proprietor

is entitled exclusively to use the design. Furthermore the proprietor can forbid the commercial use by unauthorised persons. The design protection is limited for example to Germany respectively to the European Community due to the territoriality principle. The exclusive right of use regularly ends with putting - e.g. selling - the protected product (a copy of the design) on the market within the EEA or EC, as long as this is done with consent of the proprietor (exhaustion).

The right

in a German design or a community design can be sold or distrained. A licence agreement can define the form of use, the duration of the license and the conditions (like contract territory, exclusive or non-exclusive license) and the design can be brought to a commercial exploitation.

Please note the Legal Notices.