The way to design protection: Registered design application

Patterns, i.e. two-dimensional representations of a product, such as material patterns, and models, i.e. three-dimensionally shaped products, are basically eligible for protection. Designs that subsist in features of appearance of a product which are solely dictated by its technical function cannot be protected.

A pattern or model to be protected must be new and of individual character at the time of filing of the application. "New" means in this case that no design identical to the product to be protected was known, respectively made available to the public before the filing date. Designs shall be deemed to be identical if their features differ only in immaterial details. A prior publication by the applicant himself/herself before the filing date, for example, a presentation at an exhibition, may be damaging to novelty. However, there is a 12-month period of grace. The term "individual character" basically describes the originality of a pattern or model which makes it outstanding compared with known designs. Regarding the individual character, the focus lies on the overall impression produced by a sign, whereas this overall impression has to differ from the overall impression produced on a so-called well-informed user by any design which has been made available to the public before. Thus, not every new form is eligible for protection.

Protection for a German design is obtained by filing an application with the German Patent and Trademark Office (DPMA), especially by depositing suitable diagrams of the product to be protected, wherein up to 100 designs which, however, must all belong to the same class, can be collected together cheaply in a collective application. The existence of the protection requirements of novelty and individual character is not checked by the DPMA. In 2007 for example 51,974 designs in collective applications and 2,327 applications with one design were deposited at the DPMA. The duration of protection stretches over a maximum of 25 years.

By filing an application for a community design, protection can be obtained contemporaneously in all member states of the European Community by a registered community design for a maximum of 25 years. Regarding the application for a community design there is also the possibility for a collective application and the requirements of novelty and individual character are not checked by the Office for Harmonization in the Internal Market.

The Community Design Regulation also offers the possibility to grant protection for a so-called unregistered community design in the European Union without formalities, in particular without the filing of an application. Protection is given by making the design available to the public within the territory of the European Union and lasts 3 years. The design has to be new and of individual character at the time it was made available to the public.

Regardless of the registered design protection, a product to be protected can also enjoy copyright protection if certain form creations represent artistic form creations in addition to industrial applicability. Design-oriented furniture, the clothing industry or the jewellery trade could be considered here for example.

As a flanking measure to support the registered design protection, in many cases it is possible and logical to further apply for a so-called three-dimensional mark or form mark, especially since a mark frequently can be extended arbitrarily, in contrast to a registered design, and thus a certain amount of protection can be achieved for the time after the registered design has lapsed.

In summary, the registered design constitutes a comparatively easily handable and cheap instrument for securing competitive advantages. Protection of creative product innovation is becoming increasingly important with respect to countries where wages are low and cheap suppliers exist. In this context, design in some cases is even referred to as "future technology".