Germany: Determining design infringement

For instance, European law prescribes that the overall impression of a design and the alleged infringement determine whether a design is infringed.

It is now established case law in Germany that in infringement cases the courts first have to determine which features constitute and influence the overall impression of the registered design. The standard test is then to ask whether that overall impression is also present in the attacked products.

In practice, the alleged infringements are almost never identical with the registered design; in most cases the “designers” of the alleged infringements have devoted some thought to the question of which features must be altered and to what extent, so that there is at least a slight difference in perception that can be recognised. The courts’ task is then to assess which features of the original design are more important to the informed user (which is the standard addressee of a design) than others.