Can a design be protected under both laws but not necessarily be infringed, by the same object, under both laws? Henning Hartwig solves this tricky legal puzzle.
On November 13, 2013, the Federal Court of Justice of Germany Bundesgerichtshof, overruling well-established case law, found that the requirements for protecting works of applied art under copyright law must be the same as the standards for protecting works of fine art. Since works of applied art include industrial designs, this is good news for designers and design right holders. However, given this abrupt turnaround, practitioners may feel disoriented, in particular when it comes to parallel protection under design and copyright law.
The status quo
The question of conflict or overlap between copyright law and design law has never been the subject of legislation in Germany. Rather, the courts, and especially the Federal Court of Justice, have established that substantive requirements in the sense of degree of originality or degree of aesthetic content for establishing copyright protection for works of applied art must be more stringent than those for works of fine art, provided that such a work of applied art was susceptible to design protection.
Start a subscription to WIPR for £455.
In-house feature articles, the archive and expert comment require a paid subscription. Subscribe now.
Want to give it a try? We are offering a two week free trial to the WIPR website – register and select “Free Trial” to begin access to the full WIPR archive and read the latest news, features and expert comment. Begin your free trial here.
Is your 2 week free trial about to end? Upgrade to a 12 month subscription for £455 now.
If you have already subscribed please login.
If you have any technical issues please email James Lynn on email@example.com.
copyright law, design law, copyright protection, industrial designs