Requirements for design protection – novelty and individual character
The design must be new at the date of filing the application. No design that is identical or differing only in immaterial details must have been published, exhibited or otherwise used in trade, before the date of filing or the priority date.
An exception to this basic principle is the “grace period for novelty”. The grace period is a privilege granted to designers enabling them to assess the market success of their designs. Under this provision, a disclosure of the design by the designers themselves or by persons attributable to them, during a period of up to twelve months preceding the date of filing, will not be taken into consideration. This means that, under these conditions, prior disclosures are not prejudicial to novelty.
Another requirement is that the design must have individual character. Its overall impression must differ from known designs. In this context, neither the view of a layman nor the opinion of a product designer is decisive. Rather it is the overall impression produced by the design on an “informed user” that is relevant.
A particular designing level is not required. However, it is taken into consideration whether a large number of similar designs exist in the respective category. In that case, the requirements for the distinctive level are correspondingly lower. Such a great density of designs exists, for example, for wheel rims. In this field, designs can have individual character even if they differ only slightly from known designs.
Novelty and individual character of a registered design will only be examined within the framework of invalidity proceedings before the DPMA/ the EUIPO/ the WIPO or infringement proceedings before the district court, provided the defendant files a counterclaim for the determination or declaration of invalidity of the registered design.