Bundestag approves new German Design Act

The Bundestag (House of Parliament) has adopted a bill aimed at reforming the German Design Act to comply with the Community Design Directive. Provided that the Bundesrat (representing the states of the federation) does not delay its vote, the new act should come into force in the spring, more than two years after the deadline set by the directive.

The main changes, brought in to improve the protection of designs and strengthen the position of the design owner, are as follows:

• The term of protection will be extended by five years to 25 years. Shorter terms of protection will be possible.
  
  
• The outer appearance of industrial products and handicraft items will be protectable under the act, provided they are new and have individual character. Novelty will be affirmed if no identical or quasi-identical design has been disclosed before. Distinctive character will be affirmed if the overall impression of the design in the mind of the well-informed user and designer differs from other designs and forms that have been available to the public. The current requirement for a specific degree of creativity will no longer apply, which will make more designs eligible for protection.
  
  
• A protected design will be enforceable against any design that creates the same overall impression. Previous knowledge of the registered design by the user of a similar design will no longer be a requirement to a finding of infringement.
  
  
• The grace period during which a design owner may apply to register its design after it has been disclosed will be extended from six to 12 months. However, the creators of designs with an identical overall impression cannot be attacked if they disclose their designs between first publication by the design owner and the filing of the design application.
  
  
• Unlike the Council Regulation on Community Designs, which affords protection to unregistered designs, the new German Design Act will still only protect registered designs.
  
  
• The designs of spare parts and components of complex products can still be protected as long as they are visible and as long as the visible parts meet the requirements of novelty and individual character. While apparently favouring a reduction of the protection for spare parts in order to allow a free flow across the EU market, Article 14 of the Community Design Directive gives the member states discretion to either reduce or maintain the protection for spare parts. Whereas some member states have adopted "repair clauses" limiting protection for such components, the German government has chosen to maintain a broader protection (even though not as broad as under the current act, which also gives protection to invisible parts).

For a detailed discussion of design protection in Europe, see How design laws expand the scope of rights protection.

Carsten Albrecht, Lovells, Hamburg