A design must be new and have individual character on the date of filing the application. However, the German Patent and Trade Mark Office (DPMA) does not examine compliance with these requirements before the design is entered in the Designs Register. In case of a dispute, the civil courts will decide on that issue.
New means that no design has been published, exhibited or put on the market that is identical or differing only in immaterial details from the design applied for, before the date of filing the application.
A design has individual character if it differs from already existing designs. When the individual designs are compared, the overall impression produced by both designs on the informed user is relevant.
Protection of colours and shapes
A specific level of originality is not required. However, it is taken into consideration whether a large number of designs exist in the relevant product category. If this is the case, the requirements for the distinctive level are comparatively lower. Such a high density of designs exists, for example, in the area of rims for cars. In this area, designs may also have individual character if they differ only slightly from previous designs.
A registered design provides a monopoly position: Your design registration gives you the exclusive right to use the design. You can take action against any identical or almost identical design.
No other persons may use your registered design without your consent. In addition, they are not allowed to make or sell products to which your design is applied. If a person uses your registered design without your permission, you can seek injunctive relief or request destruction of the products concerned. Furthermore, you are basically entitled to claim damages.
© 2013 Deutsches Patent- und Markenamt | Last updated 22/05/13