What is a Design?
Industrial Design Law protect both two-dimensional „patterns“ (e.g., fabric patterns) as well as three-dimensional designs. They must be patterns or models of industrial objects that address themselves to the aesthetic sense of color or form. The prerequisite is the innovation as well as the peculiarity of the object, thus a creative activity of the designer. Designs of technical devices, designs of objects of consumption or also packaging are protected. However, parts of a complete product, such as a car bodyworks with the design right valid since 2003, are only protected if they are visible and properly used. This restriction is the result of the EU harmonization. Spare parts such as mudguards, hoods or bumpers are considered protection requirements and shall be protected as registered design.
What are the differences between design law and copyright law?
As an utility model, an design patent is an unexamined protective right, whereas there is no monopolistic audit authority in Germany for copyrights. Design protection occur generally with a registration (European design protection can also be created for a limited time without registration) on the other hand, the existence of material requirements, the protection of copyright is assigned by law.At the same time, design protection is “easier” to obtain, as the copyright protection. For the latter, a Threshold of originality is required; this lies far above the innovative/ peculiarity of a design requirement. For the designer, therefore, the use of design protection is recommended; a parallel copyright protection is also possible.
Further significant differences are: the limited maximum duration of the design protection of a total of 25 years – since 2003, when the design law changed – as well as the possibility to register a multiple application for up to 100 designs or models for the same class of goods. In this case, for example, it is possible to register a hundred of different fabric patterns as multiple application.
Moreover, in the case of an unaffected design, it is assumed that design protection it is possible whereas the author demonstrates and proves that he is the originator, he has achieved a high level of originality.
Since 2003, Community Designs (due to the European Design Regulation that changed in April 2003) could be registered with registration priorities; the regarding conditions, period of protection and many other possibilities, provide cost-effective options and promise protection throughout Europe.
How long does a design patent operate?
Since the date of filing, the protection of the design patent is valid for a maximum of 25 years, as long as the design patent of use is maintained, the three renewal fees at the German patent office are really important. Despite the harmonization of the Community law, a German, non-registered design still does not exist.
Which solid protection does a design patent offer?
Instead or a global utility model, an operating European Community design is nowadays effective in Europe. A German design patent provides protection in Germany. On an international level, the Hague Agreement on Industrial Designs or Models is to be considered.
Can the design be announced before the registration (period of grace)?
In Germany, before the releasing of an invention, a legal registration is fundamental. For design patents (as for utility models), there is a so-called Period of grace of 12 months that consent a little bit of time before the actual entry into force. Under certain conditions, however, publications before the registration may be allowed.
How is a design patent developed?
German design patent can be obtained by applying at the German Patent Office. On this purpose, a Form of the German Patent and Trademark Office is available on this website http://www.dpma.de. In case of relevant multiple applications, it is highly recommended to consult a specialist.
How does a design patent granting process work?
Each received application is firstly subjected to a so-called patency examination, whereby defects or missing documents are formally listed and analyzed. The examination procedure ends with a Notice of examination or, more unfortunately with a rejection. If the design patent granting succeeds, the registered design is ready to be released.
Can a design patent be charged with a cost-effective opposition procedure?
In opposition to patent or trade mark law, the design law does not concern any opposition proceedings. In contrast with an utility model cancellation proceedings before the Patent Office, the first steps against a design patent can consist of really expensive cancellation action before a regional court. There, it is then examined whether the necessary tangibly protection requirements have been considered or if the originality and inventive of the design
What do we need to register a design patent?
Usually, a sketch, or a description and, where necessary, an object of study is required. In the individual case, further details upon consultation could be necessary; it is advisable to analyze each case individually, as they all have their own different level of complexity.
As a first step, we need to estimate some general information about further proceedings, and it is necessary for us, to know what kind of design patent would you like to apply for (furniture, fabrics, technical design, packaging, etc.). After that, one of our professional will contact you to discuss further clarifications and the estimated costs.