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- The Design Act came into force on January 1, 2014 and replaced the Design Act.
- It defines the legal protection of designs and modernizes the terminology from "design" to "registered design".
- The central requirements for protection are novelty and individual character, whereby grace periods are taken into account.
- The registration procedure has been simplified; collective applications are now possible.
- The German Patent and Trademark Office does not examine the requirements for protection in the registration procedure.
- The law covers rights of use that can be licensed or transferred, as well as claims for infringements.
- The challenge of digitalization requires continuous adaptation of the legal framework to new technologies.
Historical development and legal basis
The Design Act (DesignG) is a central law in the field of industrial property protection that came into force on January 1, 2014 and replaced the previous Design Act. It has its roots in Germany’s oldest industrial property law, which was originally introduced on January 11, 1876. The law comprehensively defines the legal protection of designs and creates a modern legal framework for creatives and companies. The terminology has been modernized from “design patent” to “registered design”, which supports international harmonization. The Design Act standardizes and simplifies the application procedure for designs. It takes account of the increasing importance of design in business and society.
Protection requirements and novelty criteria
Section 2 of the Design Act defines two central requirements for protection: Novelty and individual character. A design must be new at the time of application, which means that no identical design or a design that differs only in insignificant features may have been made publicly available before the application or priority date. The grace period allows the designer to publish a design up to twelve months prior to the application date without prejudice to novelty. The individual character is determined by the overall impression of an “informed user”. The designer’s freedom of design is taken into account, with less stringent requirements applying in areas with a high design density.
Registration procedure and legal protection
The registration procedure has been simplified with the new Design Act. Collective applications are now possible, even if the individual designs cover different classes of goods. The German Patent and Trade Mark Office (DPMA) does not examine the requirements for protection during the registration procedure. The examination only takes place in nullity or infringement proceedings. The law introduces invalidity proceedings in which anyone can file an application for a declaration of invalidity. The term of protection is initially five years and can be extended for up to 25 years.
Legal protective effects and restrictions
Section 38 of the Design Act defines the rights arising from the registered design. The protection includes the right to prohibit third parties from using the design. Exceptions are the repair clause and the right of prior use. The rights can be licensed, transferred and included in foreclosures. In the event of infringements, the rights holder is entitled to claims for removal, injunctive relief and damages. The law distinguishes between absolute and relative grounds for refusal.
International and European dimensions
The Design Act is part of the European harmonization efforts in design law. It corresponds with the EU Design Directive and Community design law. International applications can be made via the Hague System. Globalization requires flexible and technology-open protection concepts. The law increasingly takes into account digital design forms and new technologies.
Future prospects and challenges
Digital technologies and new forms of design pose challenges for design law. 3D printing, digital designs and AI-generated designs require continuous further development of the legal framework. The distinction between copyright and design protection is becoming increasingly complex. Future amendments are likely to take greater account of digitalization and international design developments.
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