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Requirements of Protection

Rain splashing on a colourful umbrella

The design must be new and have individual character

Pursuant to Section 2 of the Design Act (Designgesetz), your design must meet two criteria: the design must be new at the date of filing and it must have individual character.

Novelty

The design must be new at the date of filing. No design that is identical or differing only in immaterial details must have been used in trade, exhibited or otherwise made available to the public before the date of filing or the priority date. It does not constitute a disclosure/publication if disclosure/publication could not have become known to the circles specialised in the sector concerned, operating within Europe.

An exception to this basic principle is the "grace period for novelty". The grace period for novelty gives the designer a period of up to twelve months (preceding the date of filing or the priority date, as the case may be) for the publication of the design to assess the market success. That means: if the designer themself has published the design before filing the application, this is not detrimental to novelty, provided the period between publication and the filing of the application is not longer than twelve months.

Individual character

Another requirement is that the design must have individual character: its overall impression must differ from that of known designs. In this context, neither the view of a layman nor the opinion of a product designer is decisive. Rather, it is the overall impression produced by the design on what is called an "informed user" that is relevant.

As a rule, a particular designing quality level is not required. However, the degree of freedom of the designer in developing the design is taken into consideration. The freedom of the designer in developing a design may be restricted, for example, where a large number of similar designs already exist in the respective category. If the freedom of the designer in developing the design is restricted, the requirements for the distinctive level may be correspondingly lower. In this field, designs can have individual character even if they differ only slightly from existing designs. Such a great density of designs exists, for example, for wheel rims.

The DPMA does not examine novelty and individual character before registration

The DPMA does not examine the requirement of protection, "novelty" and "individual character" in the registration procedure. Similarly, conflicting rights of others are not examined in the registration procedure. These requirements of protection or absolute grounds for refusal will only be examined later, in invalidity proceedings before the DPMA or in infringement proceedings before the courts. If the requirements have not been met at the date of filing the application, no IP right arises from which any rights might be derived – despite registration.

Picture: iStock.com/AGrigorjeva

Last updated: 20/08/18 

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