NEW GERMAN DESIGN ACT

June 2004

On June 1, 2004 the new German Design Act entered into force by which the EU Design Directive 98/71/EC of October 13, 1998 is transposed into national law. This Act opens the door for a rather strong design protection in Germany since it creates an exclusive right and the requirements for protection and the scope of protection are very clearly defined.

The following points reassume some of the core features of the German Design Act (GDA) as well as some of the most important changes (the indications in [brackets] refer to the Design Act in force until May 31, 2004):

1) A German design is defined as 'the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product itself or its ornamentation' (Section 1 (1) GDA).

2) The protection of a German design is subject to the condition that it has novelty and individual character [and not any more the so called 'peculiarity']:
Novelty means that on the filing (or priority) date no identical design has been made available to the public; designs are deemed to be identical if their features differ only in immaterial details (Section 2 (2) GDA).
A German 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 filing date of the design application (Section 2 (3) GDA).

3) The new Design Act creates an exclusive right for the design owner, i.e., the owner of a registered German design may prohibit use even of an independently developed design which produces the same overall impression as the registered German design (Section 38 GDA).

4) Protection of the design starts with the registration [and not already as of the application].

5) The maximum period of protection is now 25 years from the application date [instead of 20 years], i.e., the first period of protection is five years from the date of filing in Germany and may be renewed four times for periods of five years. This longer period of protection applies also to all designs which are still in force.

6) The novelty grace period is now one year [instead of 6 months].

7) A design application can now cover up to 100 [and not only 50] designs provided that they belong to the same class of the Locarno Classification of Industrial Designs.

8) The maximum period of deferment of publication is now 30 months [instead of 18 months].

9) The designer has the right to be mentioned as such in the design application; this had not been possible for designs filed before June 1, 2004.

General remarks:

The official procedure provides for a formality examination (but no substantive examination), registration and publication in the (electronic) Bulletin of German Designs.

The new German Design Act has no provisions for an unregistered German design as, e.g., the EU Community Design Regulation. Please note, however, that if the publication in the Bulletin of German Designs is the first publication of the design in the European Union and the design has not been known to the public outside the EU for more than 12 months, this publication automatically starts the three-year duration of an unregistered Community design with effect in all 25 EU countries.

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