Amendments to the German Design Act change the way the validity of a registered German design may be challenged. Henning Hartwig examines the implications.
German design law, established in 1876, was modified significantly when the EU’s 1998 Designs Directive was implemented in Germany in 2004. While, for instance, the standard for testing a design’s validity under the original German design law was its “novelty”, compared with a specific piece of prior art, and its “individuality”, considering the entire body of existing designs, the German Design Act of 2004 required a design to be “new” and to have “individual character” when compared with all other prior designs one to one; this latter test including the “degree of freedom of the designer in developing the design”, which requires consideration of all the existing designs in that area side by side.
More recently, the German legislature adopted amendments to the Design Act, and these came into force on January 1, 2014. While the standards of eligibility for design protection and for determining whether a design is valid remain unchanged, the new law changes the way the validity of a registered German design may be challenged: Germany opted to align German invalidity proceedings with the European rules in the 2001 Community Design Regulations (CDR), at least in general.
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German Design Act, design law, design protection, DPMA, trademark