Germany’s Federal Supreme Court currently hands down an unusually high number of decisions dealing with matters of design law, well above the average handed down since the new German Designs Act and the CDR took effect in 2004 and 2003, respectively.
Germany’s Federal Supreme Court currently hands down an unusually high number of decisions dealing with matters of design law, well above the average handed down since the new German Designs Act and the Community Design Regulation (CDR) took effect in 2004 and 2003, respectively. This may be due to the fact that the practice has raised many questions of fact and law that the court is only now answering.
The string of decisions issued by the Federal Supreme Court (such as Untersetzer; Kinderwagen I; and ICE) has clarified many questions in respect of both validity and infringement of designs. However, one of the most tricky and important issues remains the question of how to ascertain the scope of protection of a given design in relation to the prior art, and what rules will guide the practitioner in this field. Both the CDR and the Designs Act (which implemented the EU Designs Directive) contain provisions on the scope of protection.
Article 10 para 2 of the CDR contains the rule that in ascertaining the scope of protection of a design, one shall consider the degree of freedom the designer had when he created the design in question.
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Community design protection, Kinderwagen II, German Design Act, Community Design Regulation