Concept and significance of design admission
Die Design admission is a legal term from the field of intellectual property law and refers to the explicit or implicit recognition of a design right by a person in the context of a legal dispute. The focus is generally on the admission or allowance that a particular design is eligible for protection under national or European design law, or that a design right exists. Design admission plays a central role especially in disputes concerning design infringements and has far-reaching procedural as well as substantive legal implications.
Legal nature and function of design admission
Substantive-law classification
Design admission is a special case of general admission in intellectual property law and can be made either verbally or in writing. Through admission, the party either acknowledges the existence of a registered or unregistered design, or – usually as part of litigation conduct – accepts the protectability of the asserted design. Such conduct may affect the further course of the proceedings, in particular the allocation of the burden of presentation and proof.
Constituting elements of admission
Design admission requires that a party expressly or by implicit conduct acknowledges the protectability or scope of protection of a specific design. Typical situations involving admission include the response to a warning letter, within court proceedings, or in a cease-and-desist declaration.
If a party admits to the design, this is regularly interpreted as a waiver of raising certain objections or defenses against the design as such. In particular, after admission, the party can no longer ordinarily invoke a lack of protectability, lack of novelty, or lack of individuality (§§ 2, 3 DesignG or Art. 4, 5 Community Design Regulation).
Procedural significance of design admission
Effects on the burden of proof
In design infringement proceedings, the claimant must generally present and prove all prerequisites for the claim. This particularly includes the protectability of the design. However, if the defendant admits to the protectability or existence of a design, it is no longer necessary for the claimant to explicitly prove protectability. The admission thus constitutes a judicial confession within the meaning of § 288 ZPO, which is binding on the court.
Withdrawal and binding effect
An admission once made cannot generally be unilaterally withdrawn. The party is bound in the further course of the proceedings and in subsequent proceedings to the statement made in the context of the design admission, unless there are circumstances that may justify revocation (e.g., if the confession was based on an obvious mistake, § 290 ZPO).
Distinction from similar legal concepts
Acknowledgment and admission
Design admission is to be distinguished from a partial acknowledgment, whether procedural or substantive. While acknowledgment regularly targets specific claims or rights, admission refers to the recognition of an abstract prerequisite—here, the existence of a design right. Furthermore, design admission differs from the so-called “objection of non-protectability,” since the latter explicitly contests the existence or the scope of the right.
Design admission and warning letters
In warning letter proceedings—before court proceedings—the admission takes on a special function. If the warned party issues a cease-and-desist declaration in which the protectability of the design is recognized or not contested, this can be considered a design admission. As a result, the warned party would be bound to the admission in any subsequent court proceedings and could no longer contest the protectability or existence of the design.
Design admission in the European context
Community designs and design admission
The European Community Design Regulation (GGV, Regulation (EC) No. 6/2002) does not explicitly recognize admission as a legal concept. However, the principles of admission are also applicable to proceedings before the EUIPO or in infringement lawsuits regarding Community designs. An admission made by the parties binds them according to national civil procedural law, usually the procedural law determined by the Member States.
Practical tips for handling design admission
- Review prior to giving an admission: Any recognition or non-contestation of protectability should be carefully reviewed in terms of its legal binding effect.
- Drafting responses to warning letters and statements of defense: Admissions should be explicitly avoided or expressly limited if a later challenge to protectability is to be considered.
- Documentation: Statements and correspondence in which a design admission may be inferred should be carefully documented and archived to avoid evidentiary problems.
Literature and further references
- Harte-Bavendamm/Henning-Bodewig (eds.), Industrial Property Protection. Commentary, current edition, para. on DesignG
- Kur, Annette, Copyright and Design Protection, in: Schricker/Loewenheim (eds.), Copyright, § 2 paras. 85-110
- Büscher/Dittmer/Schiwy (eds.), Industrial Property Protection, Copyright, Media Law, keyword: design admission
Summary
Die Design admission is a core institution of design law in the field of intellectual property protection and refers to the (including implicit) acknowledgment of a design or its protectability by a party to a dispute. It is of considerable practical importance in both out-of-court disputes and legal proceedings. Due to its far-reaching legal consequences, admission should only be made or granted with due caution. The binding effect of admission extends to further proceedings and can significantly influence the outcome of the litigation.
Frequently Asked Questions
Within what legal framework is a design admission protected?
The legal basis for the protection of design admission in Germany is provided in particular by the Design Act (GeschmMG); at the European level, the Community Design Regulation (GGV) applies. These laws grant the holder of a registered or unregistered design protection against imitation or unauthorized use by third parties. The general prerequisite for protection is that the design is new and possesses individual character at the time of application or disclosure. Protection arises either through registration with the German Patent and Trademark Office (DPMA) or through Union-wide registration with the European Union Intellectual Property Office (EUIPO). For unregistered Community designs, mere disclosure within the European Union suffices. Protection covers only the aesthetic appearance of the product, not its technical functionality.
What actions can a rights holder take if their design admission is infringed?
If a design admission is infringed, the rights holder has several legal options. Initially, they may issue a warning letter and demand cessation. Should these out-of-court efforts fail, an interim injunction or a lawsuit for injunctive relief and damages is possible. Additionally, the destruction of the infringing products or their recall from the market can be demanded. The legal basis for these claims is set out in §§ 38 ff. GeschmMG or the respective articles of the Community Design Regulation. It is also possible to request information regarding the extent and origin of the unlawfully made or distributed products in order to calculate the actual damage.
How long does the legal protection for a design admission last?
The protection of a registered design admission generally lasts up to 25 years from the date of application, provided that the necessary renewal fees are paid every five years. Unregistered Community designs, on the other hand, are protected for only three years from the date of first disclosure within the European Union. After the expiration of these periods, the designs fall into the public domain, so they may be used by anyone, provided no other protection rights (such as copyright or trademark law) exist.
What are the prerequisites for the enforceability of a design admission?
For a design admission to be legally enforceable, it must still be in force at the time of assertion, i.e., the protection period must not have expired. For registered designs, the register must also be current, and the fees must be paid. It is furthermore necessary for the respective design to actually fulfill the requirements of novelty and individual character. In the event of a dispute, a court can examine whether these criteria are met. For unregistered Community designs, the burden of proof for the existence and notoriety of the design admission lies with the rights holder; therefore, comprehensive documentation and evidence preservation are essential.
How is the scope of a design admission legally defined?
The legal scope of a design admission is limited by the so-called scope of protection, which is determined by the application or disclosure of the design. The decisive factor is the overall impression that the design creates on the informed user. Not only the exact registered appearance is protected, but also similar imitations, provided they convey an overall similar impression. However, functional elements that are technically dictated or necessary are expressly excluded from protection. The scope extends territorially to the respective protection area (national or Union-wide) and materially to the product classes described in the application.
What role does design admission play in relation to other intellectual property rights?
Design admission may coexist alongside other protection rights such as copyright, trademark law, or patent law. In many cases, the protection areas overlap, for example, when a utility object is protected both by design law and by copyright. In conflicts between existing protection rights and a design admission, an individual case assessment must always be made. This is particularly relevant in the area of so-called “conflict protection,” where it is examined which right takes precedence and whether cumulative protectability exists. Design protection is fundamentally excluded when the design is dictated solely by its technical function (§ 3 GeschmMG).
Which types of evidence are relevant in disputes concerning design admission?
In legal disputes concerning the infringement of a design admission, various types of evidence are crucial. These include, in particular, representations of the design in the registration or disclosure (e.g., photos and drawings), documentation of the creation process, publications and catalogs, as well as business documents regarding the market launch of the design. Especially with unregistered designs, complete proof of disclosure and design admission is of central importance for prevailing in court. Additionally, expert opinions may be obtained on the overall impression and on technically determined features.
