Designs & design law
What protects a design, and how is it registered? What are your rights? Our patent attorneys and lawyer will be happy to advise you on plans and design law.
Design law is also one of the many industrial property rights. Similar to copyright law, design law also protects the rights of creative people. Design law primarily includes two- and three-dimensional shapes. It is also a form of protection. For example, furniture, car bodies, or even toys can be protected by the design law. Two-dimensional designs can be protected, for instance, for wallpapers or fabrics. The design law is, therefore, particularly interesting for the creators of new shapes and designs. This law applies in particular to professional groups such as commercial artists, fashion designers, or designers of everyday objects.
An overview of design law in Germany and the EU
- The design right protects the creative and is particularly interesting for commercial graphic designers, web designers, or fashion designers.
- The design right protects two- and three-dimensional forms if they are new and have their character.
- The design right gives the owner of a registered design an exclusive right.
- The owner of a registered design can prohibit third parties from using his registered design without his consent.
- A design must meet two requirements. It has to be new and must have an individual character.
- Designs are protected in Germany and the EU when it is registered in the DPMA or the EUIPO.
- A registered design is protected for at least five years. The term of protection can be extended up to 25 years.
- The owner of a design has numerous claims against the infringer.
- Anyone using third-party designs without authorization is at risk of being warned by the owner of the plan.
The subject of design law
The subject of design law is two- or three-dimensional manifestations of an industrial or craft object or a part thereof. The appearance results in characteristics of lines, contours, colors, shape, surface structure, or materials from which the objects are made or their decorations. The design right gives the owner of a registered design an exclusive right. This right means that the owner of a model can prohibit third parties from using his design without consent. Acts against the holder may prevent the manufacture, offering, placing on the market, export, and import of articles in which the design is incorporated or which it is used.
Requirements for a design
A design must meet two requirements. It has to be new and must have an individual character.
A design is considered new if there is no identical or highly similar design known. The original shape must, therefore, be compared with every form known to the informed user up to that point.
When examining whether a design also has individual character, the question is whether the overall impression differs from other models. So it’s about the difference compared to similar designs. The hurdle is not set too high. As a result, even relatively minor deviations from the previously known set of forms can justify the existence of an individual character.
Creation of design protection
Protection for design is created in Germany when it is registered with the German Patent and Trademark Office (DPMA). Protection for design is built in the EU when it is registered with the EUI
check whether the design to be registered meets the requirements of novelty and individuality. This protection can lead to registered designs that do not meet these two requirements. With the registration of a plan, however, you get at least a formal legal position. This official legal position proves to be a strong legal position in the vast majority of infringement proceedings. Violators without their registered design shy away from a legal dispute since they do not have a certificate and therefore have no proof of being the owner of the plan.
The protection period of the design right
The design protection is created when the design is entered in the register. Protection initially exists for five years from registration. This five-year term of security can be extended a maximum of four times against payment of a maintenance fee. This payment allows a design to be protected for a maximum of 25 years.
Claims for design violations
The owner of a design has numerous claims against anyone who uses his design without his consent. The following applications can be considered:
- elimination, injunctive relief, damages
- destruction, recall, surrender
- If necessary, damages and claims, as mentioned earlier, can be asserted against the owner of a company for a violation committed by his employees or agents
- Submission and inspection
The danger of warnings when using other designs
Anyone who uses third-party designs without authorization threatens to be warned by the owner of the plan and the sum in dispute for the case from which the lawyer’s fees are calculated to range between EUR 10,000 and EUR 150,000, with EUR 50,000 being regularly set as the sum in dispute.
If you have questions about a design or registration about design law and the protection of your creative work? Then please contact us for an initial non-binding consultation with us.