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Questions and answers about design applications

What is a design?

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 what conditions can a design be registered?

The 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 before the date of filing or priority date. Consequently, the design must not be part of the pool of existing design creations known before filing the application. A design is disclosed if it has been made available to the public in a way that the circles specialised in the sector concerned operating within in the European Union had the opportunity to become aware of the design. This may happen by publishing or exhibiting the design or using it in trade or in another way. Outside the European Union too - e.g. at leading trade fairs in China or the USA - such kind of publication may constitute a disclosure of the design that is prejudicial to novelty.

When does a design have the necessary individual character?

When assessing individual character, the overall impression that the design produces is relevant. The overall impression of the design must differ from the overall impression of other designs made available to the public before the date of filing (or priority date) of the registered design. In this respect, the degree of freedom of the designer in developing the design is important. The greater the degree of freedom, the greater the required difference between the design and other designs known previously. It is also taken into consideration whether a large number of designs already exist in the respective sector. In that case, the requirements for the distinctive level may be lower.

What is a product?

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.

I have designed a "logo". How can I protect it? Can I also apply for a registered design to protect the "logo"?

  • Trade mark and design protection possible
    • A logo can be protected - also simultaneously - by a trade mark and a registered design.
    • What type(s) of IP you seek to obtain will depend to a large extent on the intended purpose of use.
  • Protection as a trade mark
    • If you intend to use the logo, above all, to mark certain goods or services, which are produced or offered by your enterprise, that means if you wish to use the logo on the products so they can be clearly identified as originating from this specific enterprise, then you should seek trade mark protection for the logo.
    • The logo can be protected as a figurative mark or as a combined word/figurative mark. The DPMA will thoroughly examine your trade mark applied for. It can only be registered, if there are no "absolute grounds for refusal" according to Sec. 8 Markengesetz (German Trade Mark Act). That means that in order to be distinctive your logo should be fanciful and not descriptive.
    • The term of protection of the trade mark can be extended indefinitely.
  • Protection as a registered design
    • A registered design protects the appearance of a logo. The appearance is determined by lines, contours, colours, decorations etc.
    • Design protection is the right choice, particularly, if you primarily intend to apply a logo or other graphic design to the surfaces of different products, for example, t-shirts, cups or print products, or to decorate or garnish packaging.
    • Even if you as the designer of the logo have absolutely no concrete intention of use and merely wish to gain protection for your design, design registration may be useful.
    • Design registration is comparatively low cost and the protection offered is class-independent. The maximum term of protection is 25 years.
  • Scope of protection/filing strategy/search
    • Since trade marks and designs suit different purposes of protection, the scope of protection differs from trade marks to designs.
    • If you have any doubt about what filing strategy is suitable for your plan to protect your newly designed logo, you should consult an attorney with experience in issues regarding trade mark law and designs law.
    • Tips on searching for logos are available in the section "Search" of the respective IP sections: Trade Marks and Designs.

Why protect your design?

To ensure that nobody else will do it and that you can exclusively use or exploit your design (e.g. by granting licences). 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.

What rights does a registered design confer?

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.

When should you apply to register a design?

As soon as possible. Applications with an earlier filing date or - if priority has been claimed - priority date have priority over applications with a later filing date or priority date. Protection begins when the design is registered in the Design Register. It is not until that date that you have the right to prohibit the use of the design or may enforce claims (for cessation and desistance, damages, destruction) resulting from the infringement of the design.

I have already published my design. Is it now too late for an application?

There is a privilege for the designer. They will be granted a grace period of twelve months to enable them to predict market success. That means an earlier disclosure is not prejudicial to novelty of the design if the design was made available to the public, during the twelve-month period preceding the date of filing or priority date, by the designer, their successor in title or by a third party as a result of information provided or action taken by the designer (or their successor in title).

What is a grace period novelty?

The novelty grace period is a privilege granted to the designer to enable them to predict market success. As the designer of the design you can apply for design protection within one year after the first publication ("disclosure") of your design. This period is called "grace period for novelty". Consequently, a publication of the design during the twelve-month period preceding the date of filing of the application is not prejudicial to novelty.

What does the scope of protection of a design cover?

The protection conferred by a registered design covers any design that does not produce on the "informed user" a different overall impression. In that respect the representation of the registered design plays a central role. It determines the subject matter of the IP right. Protection is limited to the features of appearance visible in the representation.

How must a design be represented in the application?

The representation consists of up to ten photographic or other graphic illustrations (reproductions) of the design. Each illustration must show only one view of the design.

For this purpose, the design can be photographed from different angles. It is important that all features, for which protection is sought, are clearly visible. Line drawings or computer-generated designs are also possible.

The representation must show the design without any additional items and against a plain background. Measurements, lettering or other descriptive additions must not be included in the illustrations. Further details on the requirements for the representation are available in the Common communication of EUIPO and the national offices on convergence on graphic representations of designs.

How must the illustrations be submitted?

The illustrations (reproductions) can be

  • submitted as JPEG files (*.jpg) within the framework of an electronic application (on the Internet via DPMAdirektWeb or using the DPMAdirekt software) or
  • stored as JPEG files (*.jpg) on electronic data carriers (CD and DVD) or
  • glued to or printed on the representation forms (R5703.1).

Representations cannot be submitted by fax.

What will be published?

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.

May the design also be represented in another way?

You may deposit two-dimensional specimens instead of a representation of the design but only if you file a request for deferment of the publication. These may be, for example, textile or wallpaper samples. Please furnish two identical two-dimensional specimens of the design.

Can I also furnish original models?

Under the Act on the Legal Protection of Designs, which entered into force in June 2004, it is no longer possible to furnish original models.

What do I have to consider when filing an application relating to typographic type faces?

You can also apply for a registered design for typographic typefaces. Typefaces are alphabets inclusive of accents, punctuation marks, numbers and symbols. Protection covers the overall style of lettering. The representation of the design must comprise the complete character set as well as a five-line text in size 16 font.

What is the "deferment of publication of the representation"?

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 illustrations (reproductions) 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 registered design is kept secret. This is very important in the fashion and car industries among others. In these sectors of industry early publication of a registered design might jeopardise the commercial success of the product.

However, please note: during the period of deferment there is no monopoly protection which prevents any third party use of the design but only protection against copying.

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 on the priority date.

Since only the bibliographic data are published at first in the case of deferment of publication, the application fees charged are initially reduced.

What happens after the period of deferment of publication?

During this deferment period you may decide whether you wish to "extend" protection to five 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 the case of an extension, the representation of the design is subsequently published after the expiry of the 30-month deferment period. By filing a separate request, the subsequent publication of the representation may be initiated at an earlier date.

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 during the deferment period.

How does the DPMA examine the design application?

The Design Unit mainly examines whether or not the application fulfils the formal requirements. However, it does not examine whether the design for which protection is sought actually fulfils the substantial requirements for protection, such as novelty and individual character. In the case of a dispute, these requirements are examined by the civil courts or during invalidity proceedings before the DPMA. That means that a design is also entered in the Design Register if one or several substantive requirements for protection are not met.

How long does the registration procedure take?

If the indication of products was drafted using the search engine and if the application also meets all other requirements for registration, the registration usually takes two to four weeks after the receipt of the application fee. The processing time may be longer if an application has deficiencies; in such cases the registration process may take seven to eight months from the receipt of the fee payment. The registration is published on the following day in DPMAregister and, about a month later, it is published in the Design Gazette (Designblatt).

Do I need a lawyer?

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 a lawyer, patent attorney or permit holder before filing an application. A professional expert 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 application formalities.

If you have neither a residence nor a principal place of business nor an establishment in Germany, you must appoint a patent attorney or lawyer in Germany to represent you. The representative may also be a national of a member state of the European Union or of another state which is a contracting party to the Agreement on the European Economic Area.

When does protection start and how long does it last?

Design protection starts on the date of registration in the Design Register. Protection can be renewed for another five years at the end of each term of protection (consecutive five-year periods from the filing date) by payment of the renewal fees. If protection is not renewed, the term of protection expires and the registered design is cancelled from the Design Register. The maximum term of protection of a registered design is 25 years from the filing date.

Has the DPMA received payment of the renewal fee for my registered design and has the payment been processed?

For registered designs which are still in force the next due date is displayed in DPMAregister, in the list of master data, in the line "Payment due on". In this list 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 pdf- Datei Information Concerning Costs, Fees and Expenses (A9510.1).

General information (in German) on fee payments to the DPMA is available here.

When does protection start and how long does it last?

Design protection starts on the date of registration in the Design Register. Protection can be renewed for another five years at the end of each term of protection (consecutive five-year periods from the filing date) by payment of the renewal fees. If protection is not renewed, the term of protection expires and the registered design is cancelled from the Design Register. The maximum term of protection of a registered design is 25 years from the filing date.

Can I claim priority of an earlier application?

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.

What do I have to take into consideration regarding an exhibition priority?

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 pdf- Datei Formblatt R 5708 and have it certified by the fair management.

I study and have no income. Can I get any fee reductions?

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 pdf- Datei "Information for Design Applicants".

Legal aid is granted in invalidity proceedings before the DPMA if the person making the request substantiates an interest of their own meriting protection or the legal defence offers sufficient prospect of success.

Do you have any further questions?

Then please call us at +49 89 2195 - 1000. The central customer care and services 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 info@dpma.de.

The central customer care and services cannot give you legal advice. Legal advice is exclusively provided by patent attorneys and lawyers.

© 2016 Deutsches Patent- und Markenamt | Last updated 22/08/17