A design is defined as the "two-dimensional or three-dimensional appearance of the whole or a part of a product" resulting from features, such as, the lines, contours, colours, shape, texture and/or materials of the product.
Under German designs law, a design must be new and have individual character.
A design is considered to be new if no identical design has been made available to the public in the European Union before the date of filing the application. A grace period of 12 months is applicable.
Individual character refers to the overall impression that the design produces. The overall impression must differ from that of already published designs. It is also taken into consideration whether a large number of designs exist in the relevant category. In that case, the requirements for the distinctive level are comparatively lower.
A product is any industrial or handicraft item, including packaging, get-up, graphic symbols and typographic type faces. Products include components which can be assembled to a complex product. A computer program is not considered to be a product.
To ensure that nobody else will do it. After all you have invested time and money in the development of the design. If you do not apply for protection, other people may benefit from your investment.
The registered design gives you the exclusive right to use the design. No other persons may use your registered design without your consent. They are not allowed to make or sell products to which your design is applied without your permission. If a person uses your registered design without your authorisation, you can seek injunctive relief or request destruction of the products concerned. Furthermore, you are basically entitled to claim damages.
As soon as possible. However, it is not detrimental to the novelty of your design if you market it within one year before filing the application.
It is possible to apply for design protection within one year after the first publication ("disclosure") of a new design. This period is called "novelty grace period". Publication of the design during the 12-month period preceding the date of filing of the application is not detrimental to novelty.
The scope of protection is limited to the features of appearance visible in the representation (illustration), that means precisely the items are protected that can be clearly seen in the design illustrations.
The representation consists of up to ten photographic or other graphic illustrations of the design.
For example, photographs of the design can be taken from different angles for this purpose - but without any additional items and in front of a neutral background. It is important that all features, for which protection is sought, are clearly visible. Line drawings or computer-generated graphics are also possible. Dimensions, textual information or other descriptive additions must not be included in the illustrations.
The illustrations can be
After registration, the representation of the design is published in the electronic designs gazette (Designblatt). If you have furnished a description (not exceeding 100 words) of the representation of the design, this will also be published.
If you file a request for deferment of the publication, you may deposit a two-dimensional specimen instead of an illustration of the design. These may be textile or wall paper samples. Please furnish two identical two-dimensional specimens.
Since the entry into force of the new designs law in June 2004, the furnishing of original models has no longer been possible.
Design registration is also available for typographic type faces. Typographic type faces are alphabets inclusive of accents, punctuation marks, numbers and symbols. Protection covers the overall type face. The representation of the design must comprise all upper and lower case letters of the alphabet, all arabic numerals and a five-line text in size 16 font.
When you file a request for deferment of publication, only the bibliographic data of the design application will be published at first. The publication of the illustration of the design, that means the "representation of the design", will be deferred for 30 months.
As long as the publication is deferred you can further develop your marketing strategies or take final preparations for production. During the deferment period the design is kept secret. This is very important in the fashion and car industries among others. In these sectors of industry early publication of the design might jeopardise the commercial success of the product.
If you have filed a request for deferment of publication, protection is initially limited to 30 months. The deferment period begins on the date of filing the application. If you claim priority, the deferment period begins as early as on the priority date.
In case of deferment of publication, only the bibliographic data are published at first. That is why, initially, reduced application fees are charged.
During this deferment period you may decide if you wish to "extend" protection to 5 years from the date of filing. You do not have to furnish a separate request for extension. You simply pay the extension fee within the deferment period.
In case of extension the registered design is subsequently published in the electronic designs gazette (Geschmacksmusterblatt).
If you have deposited only a two-dimensional specimen when filing the application, you must subsequently furnish a photographic or other graphic representation of the design.
The designs unit mainly examines whether or not the application fulfils the formal requirements. However, the designs unit does not examine whether or not the design actually fulfils the substantial requirements for protection, such as novelty and individual character. In case of a dispute, these requirements are examined by the civil courts. That means that a design is also entered in the designs register, if one or several substantive requirements for protection are not met.
Registration of a design usually takes 3 to 4 months. The registration process can be delayed if an application has grave defects and applications without defects can be registered faster. About a month later, the registration is published in the designs gazette (Designblatt).
As a rule, you can apply for a design right yourself at the German Patent and Trade Mark Office. However, it may be useful to seek the help of an attorney-at-law, patent attorney or permit holder prior to filing an application. A professional in the field of industrial property protection may assist you in determining the subject matter of protection, assessing the requirements for protection and dealing with the formalities of the application.
If you do not have a domicile or establishment in Germany you must appoint a patent attorney or attorney-at-law resident in Germany to represent you. The agent may also be a national of a member State of the European Union or of a State party to the Agreement on the European Economic Area.
For registered designs which are still in force the next due date is displayed in DPMAregister / in the section Designs/ in the list of master data/ in the line "Payment deadline". Here you will also find the term of protection resulting from the latest fee payment.
If the full and correct fee amount has been paid in respect of the file number, the payment is usually processed within the next 35 days and - if admissible - the next due date will be indicated in the corresponding line.
Since 01 June 2011, the DPMA has stopped issuing receipts (see also Mitteilung Nr. 7/11 der Präsidentin des Deutschen Patent- und Markenamts), but you can use the updated data of your register entry as confirmation of payment.
Information on the amount of the fees payable is available on the fees page or in the leaflet Information Concerning Costs, Fees and Expenses (A9510.1).
General information (in German) on fee payments to the DPMA is available here.
Design protection starts on the date of registration of the design in the Designs Register. The maximum term of protection of a design is 25 years from the filing date. To maintain registration, protection must be renewed at the end of each term (every 5 years). For this purpose, renewal fees must be paid. If protection is not maintained, the term of protection expires and the registration is cancelled from the Designs Register.
Yes, if you have filed an application for the registration of your design in a Member state of the Paris Convention for the Protection of Industrial Property or of the Agreement Establishing the World Trade Organization, you can claim the priority of that application. You must submit the later application to the German Patent and Trade Mark Office within six months from the filing date of the earlier application.
Claiming priority of an earlier application filed at the German Patent and Trade Mark Office (a so-called domestic priority) is not possible under German designs law.
The exhibitions for which priority may be claimed are published in Bundesgesetzblatt (Federal Law Gazette).
If you wish to claim an exhibition priority you need a corresponding exhibition certificate. You should preferably use form Formblatt R 5708 and have it certified by the fair management.
You can request legal aid for a design application, if your financial circumstances are difficult. Legal aid covers the application fees and the costs of publication. You may also request legal aid for the extension fees and the renewal of protection. Detailed information is available in the factsheet "Information for Design Applicants".
Then please call us at +49 89 2195 - 3402. The enquiry unit of the German Patent and Trade Mark Office will be pleased to answer your questions about design applications.
Or, simply send an e-mail to email@example.com.
The enquiry units do not give legal advice. Legal advice is exclusively provided by patent attorneys and attorneys-at-law.
© 2014 Deutsches Patent- und Markenamt | Last updated 30/10/14