Questions about Designs
Here you will find a selection of frequently asked questions on design protection
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". It results, for example, from features, such as the lines, contours, colours, form, shape, texture and/or materials of the product.
Under what conditions will a design be protected?
The design must be new and have individual character.
A design is considered to be new if no identical design has been disclosed 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 similar designs already exist in the respective sector. In that case, the requirements for the distinctive level may be correspondingly lower.
What is a product?
A product is any industrial or handicraft item, including packaging, get-up, graphic symbols and typographic typefaces. Products also 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 are possible.
A logo can be protected - also simultaneously - by a trade mark as well as by a registered design.
What IP rights you seek to obtain for your logo 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 to clearly identify the products as originating from this specific enterprise, then you should seek trade mark protection for it.
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 Section 8 of the Trade Mark Act (Markengesetz). That means that in order to be distinctive your logo should be fancy 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.
Protection by a registered design 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, a registered design may be useful.
Design protection 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 registered designs suit different purposes of protection, the respective scope of protection may differ between trade marks and registered designs.
If you have any doubt about what filing strategy is suitable for your plan to protect your newly designed logo, you should consult a lawyer with experience in trade mark law and design law.
Why protect your design?
To ensure that nobody else will do it and that you can exclusively use or exploit your design (for example, 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 registered design. Other persons are prohibited from using your registered design without your consent. Without your permission, they are not allowed to make or sell products to which your design has been applied. If anybody makes unauthorised use of your registered design, you may demand that they cease and desist this activity 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 of a foreign application or an exhibition priority has been claimed – priority date have priority over applications with a later filing date or priority date. This is important, for example, to assess novelty and individual character. Design 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.
What is the grace period for novelty?
The novelty grace period is a privilege granted to the designer of a design 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; in that case, the publication of the design is not detrimental to novelty. 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 registered design cover?
The representation of the registered design plays a central role in that respect. It determines the subject matter of the IP right. Protection is limited to the features of appearance visible in the representation. The protection conferred by a registered design is directed against any other design that does not produce a different overall impression on what is referred to as informed user.
How must a design be represented in the application?
The representation of the design consists of up to ten photographic or other graphic illustrations (reproductions) of the design. Each illustration must not show more than one view of the design. For example, 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. Drawings or computer graphics are also possible.
The representation must show the design without accessories (objects that are obviously not part of the design) and against a neutral background (homogeneous neutral colour, which clearly differs from the design, for example, white or grey). 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 (2.79 MB).
Illustrations with different design variants cannot be filed as representation for a single design. Every design variant (e.g. different colour or form) is a separate design and must be applied for as such.
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 or printed onto the representation forms pdf file (R 5703.1)(in German).
Representations cannot be submitted by fax.
What will be published?
After registration, the registered design including the representation and other data is published in the electronic Design 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 you 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 you have to consider with regard to typefaces?
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 "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 deferment period, the design is not protected by an exclusive right of use (monopoly) but only protected 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 as early as 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 the deferment period of up to 30 months you may decide if 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. It also examines whether the design applied for actually constitutes a design within the meaning of the Design Act (Designgesetz) that means whether it shows the concrete appearance of an industrial or handicraft item. 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 four to six 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 three to four months from the receipt of the fee payment. The registration is then 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.
However, 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 entitled and authorised to represent you. This also applies if you are a German national but have your residence or principal place of business outside Germany.
When does protection start and how long does it last?
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 the next due date - if admissible - will be indicated in the corresponding line.
Since the DPMA does not issue receipts, 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.
General information on fee payments to the DPMA is available here.
Can you claim priority of an earlier application?
Yes, if you have filed an application for the registration of your design in a member state that is a contracting party 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 first application.
Claiming priority Can you claim priority of an earlier application?
of an earlier application filed at the German Patent and Trade Mark Office (referred to as "domestic priority") is not possible under the German Design Act (Designgesetz).
What do I have to take into consideration regarding an exhibition priority?
The exhibitions for which priority may be claimed are published in the Federal Gazette (Bundesanzeiger). If you wish to claim an exhibition priority, you need a corresponding exhibition certificate. The certificate must have been granted during the exhibition by the competent department and contain a certified photograph of the fair stand showing the design. Please preferably use the form ( Form R 5708 in German) for this purpose 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 economic circumstances are difficult. Legal aid covers the application fees. You may also request legal aid for the costs of extending protection and renewing registration. Detailed information is available in the factsheet 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?
Please call our Customer Care and Services (+49 089 2195-1000) - or send us an e-mail to firstname.lastname@example.org.
Last updated: 20 October 2020