Design (property right)

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A design or registered design is an industrial property right that gives its owner an exclusive right to use an aesthetic appearance (shape, color, shape) for certain goods . The terms design or registered design are just different names for one and the same type of property right. The more modern and widely used term design is used below.


Design protection is given if the design is registered or registered with the competent authority for industrial property rights, usually the respective patent office . It is then a registered design . In addition, there is also an unregistered community design in the EU , the protection of which arises solely through initial use. International design protection is possible through the Hague Agreement on the International Deposit of Industrial Designs .

Aesthetic designs should be protected against imitation. On the other hand, they would be excluded from patent or utility model protection . Design protection covers the two- or three-dimensional appearance of an entire product or part of it.

Conditions for the legal validity of a design right are essentially:

  • Novelty (no identical design may have been published before the first registration, but there is a grace period of 12 months).
  • Eigenart (the overall impression that the design makes on the informed user must be different from the overall impression that another design makes on the informed user).

A design right is an unchecked property right. In the registration process, the requirements for novelty and individual character are not checked, only the formal requirements for registration. If the owner of a design right asserts claims from the design against an alleged or alleged infringer, the infringer can check whether the design lacked novelty or uniqueness at the time of registration or on the priority date. Depending on the procedural situation, he can file a counterclaim for a declaration or declaration of invalidity with the court before which he was sued for infringement, or (in the case of registered designs) submit an application for invalidity to the competent office where the design was registered.

The protection arises with the entry in the register. In most jurisdictions, the term of protection of the registered design is 25 years from the filing date. Maintenance fees have to be paid for this. If this is not done, the protection expires sooner.

Regulation (EC) No. 6/2002 of the Council of December 12, 2001 on Community Designs (GGV) established an EU-wide Community design. It has the same effect in all EU countries. The European Union Intellectual Property Office (EUIPO) is responsible for the registration of Community designs. In addition to the so-called registered community design, there is also the unregistered community design mentioned above . This non-registered design right arises automatically when the design is made publicly available in the EU and offers protection for three years (Art. 11 (2) GGV equates certain types of extra-community access to this).

In addition, nationally valid design rights are possible in the EU. In Germany, the authority responsible for registration and nullity applications is the German Patent and Trademark Office (DPMA); the corresponding provisions can be found in the Design Act .

The maintenance fees are payable for community designs and national German designs from the 6th year of protection for a five-year period.

Scope of protection

The design right authorizes the owner to prohibit third parties from doing something. This particularly affects the manufacturing, offering, placing on the market, importing, exporting or using a product that contains the design or in which it is used. This is based on the entire appearance of a design, which is visibly reproduced in the application for registered designs ( Section 37 (1) DesignG). Identity doesn't matter. The decisive question is whether the same overall impression is produced by an “informed user” ( Section 38 (2) DesignG).

In principle, any of the actions mentioned can be prohibited, provided they have not been permitted by the rights holder ( Section 38 of the Design Act ) or the rights of the holder have not already been exhausted. The latter is the case if the goods were originally placed on the market by the owner of the property right or with his approval. Exceptions to design protection are granted by the legal situation in particular for actions carried out in the private sector for non-commercial purposes, for actions for experimental purposes and for reproductions for the purpose of citation or teaching with reference to the source and to a fair, non-impairing scope.

Design and image rights

In Germany, the owner of the property rights is granted the right to commercial use of the image of the protected objects. As a result of Art. 13 of the EU Design Directive 98/71 EG, § 40 GeschmMG formulates the limitation of this exclusive right; The following are permitted: Reproductions for the purpose of citation or teaching, provided that such reproductions are compatible with the practices of fair business dealings, do not unduly impair the normal exploitation of the design and state the source .

Conversely, legal comments conclude from this that all other reproductions of products are reserved for the rights holder: As an act of use, reproduction is any type and form of product image. The VerbietungsR (real) is subject to z. B. the reproduction of sample products in illustrated books . Illustrations as jewelry or decoration would not be covered by the exemption. Since an explanatory consultation is necessary, the commercial sale of postcards , for example, would be subject to the right holder's right to prohibit. As a source that might sound information of the object of playing through the creative and commercial origin into account.

An ICE 3 operated by Deutsche Bahn AG

The illustration of a protected design such as B. of the ICE was decided in a fundamental decision in 2011 by the Federal Court of Justice that the depiction of a design does not fulfill the "purposes of citation" according to § 40 No. 3 DesignG and is therefore inadmissible if it serves exclusively advertising purposes. It was based on a case in which a research institute of the Fraunhofer-Gesellschaft , which dealt with rail vehicle technology and had developed a wheelset testing system for the ICE 1 train type for Deutsche Bahn, had an image of the ICE 3 railcar in the exhibitor catalog of a trade fair for its services advertised. According to the BGH, this image serves purely for advertising purposes and is no longer exempt from the Design Act.

Basically, the right from design protection stands independently alongside copyright claims. There has not yet been any case law on the question of which of the copyright restrictions apply by analogy. Is required z. Sometimes a balance between the interests of the right holder and the interests of those who want to depict the pattern.

See also


  • Sven-Erik Braitmayer: Guide to national designs. Heymanns, Cologne 2004, ISBN 3-452-25744-4 .
  • Alexander Bulling, Angelika Langöhrig, Tillmann Hellwig: Community designs . Heymanns, Cologne 2004, ISBN 3-452-25402-X .
  • Alexander Bulling, Angelika Langöhrig, Tillmann Hellwig: Design . Design protection in Germany and Europe with the USA, Japan, China and Korea. 4th edition. Heymanns, Cologne 2017, ISBN 978-3-452-28148-7 .
  • Helmut Eichmann, Marcus Kühne: Design Law. 5th edition. Beck, Munich 2015, ISBN 978-3-406-65795-5 .
  • Jürgen M. Kunze: The new design law. Bundesanzeiger, Cologne 2004, ISBN 3-89817-353-4 .
  • Paul Maier, Martin Schlötelburg: Guide to Community Designs . Heymanns, Cologne 2003, ISBN 3-452-25023-7 .
  • Thorsten Rehmann: Design right. Beck, Munich 2004, ISBN 3-406-52275-0 .

Web links

Individual evidence

  1. ↑ Under European law, the designation design is still applicable, cf. §§ 62 ff. DesignG.
  2. In Germany the right registered with the DPMA was formerly called e.g. B. Designs . Only a name change was made to design .
  3. Regulation (EC) No. 6/2002 of December 12, 2001
  4. Eichmann in Eichmann / Falckenstein § 38 Rn. 19th
  5. Eichmann § 40 Rn. 4th
  6. ^ BGH, judgment of April 7, 2011 , Az. I ZR 56/09, full text.