European Patent Attorneys · Mandataires agréés près l'Office européen des brevets
European Trademark & Design Attorneys · Mandataires en Marques, Dessins & Modèles Communautaires

Design Protection

The outward appearance of products can be protected via registered designs. Two-dimensional or flat-surface designs such as wallpapers or printed images on T-shirts can be registered for protection, as can be three-dimensional designs of objects as a whole.

Design protection is available for all features of product's appearance, provided that they are not solely dictated by its technical function. Tire tread designs, for example, are eligible for protection. Although the main purpose of a tread is to fulfil technical requirements, they can nevertheless be satisfied in various ways. Design considerations may therefore also play a role in the development phase, when the decision in favour of a certain tire tread is taken.

In Germany, the aesthetic designs of consumer products enjoy copyright protection only in very rare and exceptional cases, the reason being that the standards applying to creativity an originality are much higher under copyright law than under design protection law. As a rule of thumb it can be said that it is not enough for a product merely to reflect the taste of the time. Instead, it must be possible to show that the product will have a lasting effect within the context of the history of design. One relatively strong indicator of such an effect exists if the product is still associated with the name of the creator even after a long period. This applies, inter alia, to products designated jointly as "Bauhaus classics", e.g. the "Mies van der Rohe chair", the "Le Corbusier chaise longue", the "Wagenfeld lamp WG 24" or other similarly important designs. What results at all events from the above is that copyright protection for consumer products is a rare exception.

The subject of a registered design must be new and must possess "individual character". This means that it must not be directly obvious or occur automatically to a person skilled in the art of design.

The novelty requirement makes it advisable to file a registered design application prior to the date of first public disclosure. If the design is seen by others, who then apply for design protection themselves, it might be difficult to prove who designed and disclosed first. If, however, you disclose a design that you do not consider especially important but subsequently decide to apply for design protection as a result of the way in which third parties have reacted to the design, you can still take this step up to 12 months after the date of first public disclosure (so-called "grace period for own disclosures", "Neuheitsschonfrist für eigene Veröffentlichungen").

Design protection can be obtained in the form of a national, regional (e.g. registered Community design, affording protection throughout the EU) and international registered designs (under the agreement of The Hague). Up to 100 different designs can be combined in a multiple application, making it much cheaper to register several designs.

The maximum protection period is 25 years. An extension fee is charged every five years.

Community design protection is characterized by another special feature: the protection of "unregistered Community designs". The aesthetic features of designs are protected from copying throughout the territory of the European Union for a period of three years from the date upon which the designs were first made available to the public within the territory of the EU. There is, however, no grace period for unregistered Community designs. Protection as an unreigstered Community design will no longer be available in the event of prior disclosure of the design outside of the European Union. If a product is put on the market prior to registered design application, the protection afforded by the "unregistered Community design" is often useful in cases where imitator products appear on the market shortly after the product's launch.