Peculiarity in the design

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In addition to novelty, individuality is the most important prerequisite for the protectability of a design (registered design). The term "Eigenart" goes back to the term "Eigenart", which was valid until the reform of the design law in 2004.

The term "peculiarity" in the old design law

In contrast to utility model law, there is no need to "rely on an inventive step" for the recognition of the design capability of the creative work of a model designer . Instead, Section 1 (2) of the old version of the GeschmMG (old version) demanded a (sufficient) "peculiarity" of the product in order to be considered a sample or model in terms of design law. The prerequisites that a design object had to meet so that it could be awarded the title "peculiarity" were of course not codified in the old design law. With the concept of peculiarity in the conventional design law, the requirement of a certain self-creative achievement of the model designer was circumscribed, which did not need to reach an artistic level of design as with works of applied art. However, the sample or model had to stand out from the mass of purely artisanal average shapes and from the wealth of shapes available. Since there was no legally binding legal definition for the "peculiarity", the BGH had at least established an interpretation rule in consistent case law , according to which a pattern or model is peculiar within the meaning of Section 1 (2) GeschmMG aF, if it is in the aesthetic one Effect-determining characteristics appear as the result of a personal, form or color creative activity, which goes beyond the average ability of a pattern designer equipped with the knowledge of the relevant subject.

The definition of "Eigenart" in the Design Act (DesignG) (new version of the Design Act (nF))

The precondition for protection "Eigenart" (formerly referred to as "Eigenigkeit", see above) is now a constituent feature of Section 2 (1) DesignG. In contrast to the old law, according to which the indeterminate legal term "peculiarity" had to be filled out by the case law (see above), the new design law provides a legal definition in Section 2, Paragraph 3, Clause 1, according to which a pattern has "individual character" "if the overall impression it makes on the informed user differs from the overall impression that another pattern makes on that user that was disclosed prior to the filing date. " The German legislator has implemented a corresponding EU requirement in almost identical wording .

The terms "disclosure" and "filing date"

For this, the legal definitions of § 5 DesignG and § 13 DesignG are to be used as a supplement . For example, Section 5 Clause 1, 1st half-sentence DesignG contains a legal definition of the term "disclosure", according to which - in principle - a sample is disclosed "if it has been made known, exhibited, used in circulation or made available to the public in any other way ... ". Pursuant to Section 13 (2) DesignG, the "filing date" can be replaced by the priority date (filing date of a corresponding earlier foreign design application or the date on which a corresponding one is issued ) in the case of effective use of a foreign or exhibition priority in accordance with Section 14 DesignG or Section 15 DesignG Pattern or model). Section 13 (2) DesignG.

The assessment aid of Section 2 Paragraph 3 Sentence 2 DesignG

The new design law has added the rule in Section 2 (3) sentence 2 DesignG, according to which the degree of design freedom of the designer when developing the design is taken into account when assessing the individual character. It makes sense to understand this provision in such a way that the creative creation of a "designer" (pattern designer) who has only limited freedom of design deserves the predicate "individual character", whereas stricter standards must be applied to a "designer" with unlimited freedom of design.

The restriction according to § 4 DesignG

In the case of "components of complex products", § 4 DesignG requires - in addition to the requirements standardized in § 2 Para. 3 DesignG - that the relevant pattern may only be granted "individual character" if, after insertion in a complex product, it intended use, remains visible and these visible features of the component themselves meet the requirements of the individual character.

Résumé

The express factual regulation (legal definition, assessment aid, restriction for the special case of "components of complex products") of the protection requirement "individual character" contained in the new design law - in contrast to the old version of the design law - means a not inconsiderable relief for the legal finding. Because it completely dispenses with the difficult to judge criterion "average ability of a model designer equipped with the knowledge of the relevant subject area" by which the BGH measured the creative activity of the model designer according to previous case law (see above on the term "peculiarity"). Instead, the new factual regulation - in principle - focuses on the "overall impression" created by the pattern for the "informed user" and its differentiation from the overall impression created by another pattern for the (same) user, Section 2 (3) sentence 2 DesignG .

Individual evidence

  1. ↑ Law on the Reform of Design Law ( Design Reform Act) of March 12, 2004, Federal Law Gazette I, p. 390
  2. ↑ See § 1 Paragraph 1 GebrMG
  3. ↑ a b Dietrich Scheffler, Novelty and individuality in designs according to old and new law - a comparative study, in: Rundbrief Deutscher Verband der Patentingenieure und Patentassessoren (VPP) No. 3, Munich, September 2004, p. 100
  4. ↑ Gerstenberg, E., Buddeberg, M., Design Law, 3rd edition, Heidelberg 1996, p. 78
  5. ↑ BGH, in: GRUR 1970, p. 369 f
  6. ↑ See only BGH, in: GRUR 1960, p. 395 f, and BGH, in: GRUR 1966, p. 97, 99
  7. ↑ Directive 98/71 EC of the European Parliament and of the Council on the legal protection of designs from October 13, 1998 (reproduced in: Blatt für Patent-, Muster- undzeichenwesen 1999, S: 24 ff)

See also

swell

literature

  • Dietrich Scheffler, Novelty and peculiarity of designs according to old and new law - a comparative study, in: Rundbrief Deutscher Verband der Patentingenieure und Patentassessoren (VPP) No. 3, Munich, September 2004, pp. 97 ff
  • Ekkehard Gerstenberg, Michael Buddeberg, Design Law, 3rd edition, Heidelberg 1996

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