NEW GERMAN DESIGN MODEL ACT ENTERING INTO FORCE ON JUNE 1, 2004 - SPARE PART PROTECTION REMAINS POSSIBLE

Germany is harmonizing its national Design Model Act in compliance with the European Directive 98/71/EC of October 13, 1998 on the legal protection of designs. With effect from June 1, 2004, the new German Design Model Act enters into force.

"Design" is broadly defined in the new Act, similar to the Community Design (CD), as being the appearance of the whole or a part of a product. A product is defined to comprise any “industrial or handicraft item, packaging, get-up, graphic symbol and typographic typeface”. In effect, also designs like computer icons or a certain design of a computer menu can qualify as a design.

While the Community Design excludes design protection for component parts of complex products which are used for the purpose of the repair of said complex products so as to restore its original appearance, German design model protection can be obtained for so-called spare parts, e.g. car fenders, engine hoods or car bumpers, if the further requirements of protections are fulfilled.

A design being a component part of a complex product requires that it remains visible during normal use and the visible features of the component part fulfill in themselves the requirements of novelty and individual character. “Normal use” within this context means use by the end user, excluding maintenance, servicing or repair work.

Consequently, effective protection for visible spare parts in Germany can only be obtained by the filing of a national German design application, not by a CD.

The rights conferred by a German Design Model according to the new Act no longer need the use to result from “copying”. It is no longer required that an infringer has knowledge of the protected design. Only for the duration of the deferment of the publication, if applied for, do the rights depend on the copying of the design.

While the former design model law provided a duration of 20 years, the new Act provides a duration of 25 years. The design is initially protected for five years and can be renewed for subsequent five-year periods up to the total term.

The new Design Model Act only provides regulations regarding registered German designs. So-called unregistered Designs being effective in Germany are exclusively governed by the European Council Regulation (EC) 6/2002 and can only be obtained as an unregistered CD.