Definition and Legal Foundations of Design
In a legal context, design refers to the aesthetic appearance of products or parts thereof. This appearance may result in particular from the lines, contours, colors, shape, surface texture, and the arrangement of materials of the product. Legally, design is specifically anchored as a subject of protection in design law and plays an important role in various areas of law, such as intellectual property law, competition law, and within the context of copyright law.
The objective of design protection is to safeguard innovative aesthetic creations against unauthorized imitation and exploitation and to grant the holder exclusive rights of use. In Europe and Germany, design law has a distinct character and is delineated from other intellectual property rights, such as trademarks, patents, and copyright.
Design Protection under German and European Law
Terminology and Distinction
German design law is governed by the Design Act (DesignG) . Previously, this protective instrument was referred to as the registered ‘Geschmacksmuster.’ Since 2014, the term ‘design’ is legally binding. In the European Union, the Community Design Regulation (GGV) governs protection at the Community level, which is administered by the European Union Intellectual Property Office (EUIPO).
A legal distinction exists with copyright law. While copyright protects works with artistic value, design protection law focuses on the purely aesthetic effect of an industrially or artisanally manufactured product, regardless of artistic creation.
Requirements for Protection
The following fundamental requirements must be met for legally effective design protection:
- Novelty: At the time of filing or disclosure, the design must not have been previously published or used identically or in its essential features.
- Individual Character: The design must create an overall impression that clearly distinguishes it from prior designs for informed users.
A design is protected if both criteria are met (§ 2 DesignG).
Scope of Design Protection
Subject Matter of Protection
Protectable designs include two-dimensional (e.g., patterns, graphic symbols) and three-dimensional appearances (e.g., furniture, vehicles, packaging) of industrial or handcrafted products. Excluded from design protection are features dictated solely by technical function as well as appearances that contravene legal regulations or the public interest.
Rights Arising from a Registered Design
According to § 38 DesignG, a registered design grants the holder an exclusive right of use. In particular, this includes:
- the right to prohibit others from making, offering, putting on the market, importing, exporting, or using a product embodying the protected design;
- the right to protection against imitation.
Exceptions and Limitations
Rights from a registered design are limited if:
- the design is used privately and not for commercial purposes,
- actions are taken for experimental purposes,
- the use is necessary for citation or for teaching and research purposes (see § 40 DesignG).
Enforcement and Claims in Case of Infringement
Civil Law Claims
If a design is unlawfully used, the holder may assert civil law claims, including:
- Claim for Injunctive Relief
- Claim for Damages
- Claim for Removal (destruction of infringing products)
- Claim for Information (regarding origin and distribution channels of the products)
These legal measures can be enforced through preliminary injunction proceedings or in main proceedings before the competent courts.
Criminal Law Relevance
Intentional infringements of design rights may constitute a criminal offense and are prosecuted pursuant to §§ 51 ff. DesignG. This includes unauthorized imitation, offering, placing on the market, or possession of unlawfully reproduced products for commercial purposes.
International Aspects of Design Protection
Protection Abroad
Design protection is generally territorial. For broader protection, a national application can be combined with an international extension (e.g., via the Hague Design Registration). In addition, the EU-wide Community Design Regulation and international treaties such as the Hague Agreement Concerning the International Deposit of Industrial Designs provide possibilities to extend protection.
Unregistered Design Protection
According to the Community Design Regulation, designs that have not been explicitly registered also enjoy unregistered Community design protection for three years from first disclosure. This specifically protects against imitation and direct copies, but not against independent parallel developments.
Relationship to Other Intellectual Property Rights
Design and Copyright
Design and copyright sometimes overlap, for example in applied art. In Germany, a design may also be protected by copyright if it constitutes ‘a personal intellectual creation’ (§ 2 para. 2 UrhG). In case of conflict, the specific rules for so-called multiple protections apply.
Design and Trademark Law
Trademark protection covers signs that serve to distinguish goods or services. Designs can, under certain conditions, also be protected as three-dimensional trademarks if they meet the requirements of trademark law.
Design and Patent Law
Technical solutions are primarily protected by patents or utility models. Designs, on the other hand, protect only the appearance, not functional or technical aspects.
Duration and Extinction of Design Rights
Duration of Design Protection
In Germany and the EU, the maximum duration of protection for a registered design is 25 years, usually granted in five-year terms and renewable in further five-year periods (§ 27 DesignG, Art. 13 GGV). After the maximum term expires, or through surrender or non-renewal, design protection lapses.
Application, Procedure, and Register
Application Procedure
Application for a design is filed with the German Patent and Trademark Office (DPMA) or with the European Union Intellectual Property Office (EUIPO) for Community designs. For design protection, exact representations of the design and identification of the product are required. The procedure only involves a formal examination; there is generally no substantive examination of novelty or individual character.
Publication and Entry in the Register
Upon registration, the design is published in the relevant register and is accessible to third parties. Register entry facilitates enforcement and creates transparency regarding protective rights.
Conclusion
Design in the legal sense refers to the aesthetic appearance of a product and enjoys its own statutory protection. Design law is governed by special provisions in German and European law, creates exclusive usage rights, and offers extensive options for enforcing these rights. A clear distinction from related intellectual property rights, especially copyright, trademark, and patent law, is essential for proper legal classification. International protection mechanisms and the possibility of unregistered design offer comprehensive options for protecting creative work.
Frequently Asked Questions
What legal requirements must be met for a design to be eligible for protection?
For the protection of a design under the Design Act (DesignG) or design protection (European law: Community design), several requirements apply. The key is that the design is new, meaning that before the filing date it was not accessible to the public in any identical or similar form. In addition, the design must have individual character: the overall impression it creates for the informed user must differ significantly from known designs. Features that are solely dictated by the technical function or that must necessarily remain to connect a product to another (the so-called ‘must match’ criteria) are not eligible for protection. Protection arises only upon entry in the public register; for the unregistered Community design, publication in the EU suffices. The design must not contain characteristics that violate public policy or accepted principles of morality.
What intellectual property rights are available to a designer for their creations?
Essentially, designers can rely on registered design rights (formerly known as design patent rights), copyright, and under certain circumstances, competition law. While the registered design offers formal protection valid for up to 25 years, copyright can apply regardless of formal registration, provided a sufficient degree of creativity (Schöpfungshöhe) is reached. Competition law (particularly supplementary protection under § 4 No. 3 UWG) can become relevant if the design needs protection from unfair competitive practices. Additionally, the unregistered Community design offers short-term protection for three years, but only within the EU.
What are the legal consequences of a design infringement and what claims does the owner have?
A design infringement occurs when a third party uses a protected design without the owner’s consent. In this case, the holder can assert various claims: injunctive relief (prohibition of further use), information (concerning the scope of use and profits made), damages (actual damages, loss of profit, or surrender of the infringer’s profits), and in some cases, destruction or recall of the infringing products. Courts can issue preliminary injunctions to halt further use. In addition, there may be criminal consequences in cases of intentional infringement, as well as liability for legal fees and court costs.
How is a design registered and what is the significance of the filing date?
Registration of a design is done with the German Patent and Trademark Office (DPMA) or with the European Union Intellectual Property Office (EUIPO) for Community designs. Representations (e.g., photographic images or drawings) of the design and a corresponding application must be submitted. The filing date is essential, as it determines novelty and priority in the event of a conflict of rights. All designs made public before the filing date constitute prior art. Faulty or late applications may lead to refusal or subsequent cancellation of the protective right.
What obligations and deadlines must be observed to maintain design protection?
After registration, the design owner must regularly pay maintenance fees. The maximum protection period is 25 years, with fees payable for each consecutive five-year term. Failure to pay fees on time results in lapse of protection. The owner should also monitor whether the design is being unlawfully used, as claims may otherwise become time-barred. For registered designs, infringement claims can generally only be asserted for three years from becoming aware of the infringement.
Can multiple designs be protected in a multiple application and what legal requirements apply in such cases?
Yes, the Design Act allows for a so-called multiple application, in which several designs (variants or series) can be combined in a single application. The requirement is that all designs relate to the same class of goods (according to the Locarno Classification). In an application for a Community design, up to 100 designs per application are possible—a significant advantage for the EU-wide right. The legal effects of the multiple application apply to each individual design; the duration, renewal, and possible claims are the same as for single applications. However, errors in representation or description can jeopardize the entire protective right, so special care is required.
To what extent do design protection and copyright overlap and what are the legal consequences?
The same design can be protected both by design rights and by copyright (‘dual protection’). While design protection is generally granted on a formal basis upon registration, copyright protection requires that the design constitutes an individual intellectual creation with a particular level of artistic creativity. The claims in case of infringement (especially injunctive relief and damages) are similar, but often differ in the calculation of damages and the burden of proof for the level of creativity. Dual protection enables the designer to assert parallel claims under different legal bases. A significant difference lies in the duration of protection: copyright can last up to 70 years after the death of the creator, whereas design rights end after 25 years.
