Geschmacksmuster

A registered design (formerly Design ) is an intellectual property right that gives its owner the exclusive right to use an aesthetic appearance ( shape, color, shape).

General

Aesthetic designs are excluded from patent and utility model protection, but can on the design law by the registration in the Design tab also be protected against imitation. Managed is the registered two - or three-dimensional appearance of the whole or a part of it.

Conditions for the validity of a design are essentially:

• Novelty ( there must be no identical pattern before the first application have been published, but there is a grace period of 12 months).

• Character ( the overall impression made by the pattern on the informed user must be different from the overall impression a different pattern on the informed user makes ).

A design is a so-called untested law, which means that the requirements as to novelty and individual character in the registration procedure by the German Patent and Trade Mark Office ( DPMA ) can not be checked. The DPMA examines only the formal requirements of registration. Does the owner of a design on claims from the pattern a dispute as his adversary is, however, open to the objection that the protection was ineffective because it lacked novelty or individual character.

Protection arises with the entry in the register. The term of protection of registered designs is 25 years from the filing date. However, if the protection from the 6th year to paying maintenance fees are not paid, the protection expires earlier.

Since the entry into force of Regulation 2002 of 12 December 2001 on Community designs ( CDR) (EC ) No 6/ 6 March 2002 there has been a Community design. After the CDR is in addition to the so-called registered Community design as a major innovation in the unregistered Community design protected. Although this unregistered design law merely provides a pure imitation of protection for three years, but is created automatically with the making public of the pattern in the EU (Article 11, Paragraph 2 sets the CDR certain types of non-EU making available the same).

Scope

The registered design granted rights to use and to Prohibit. Managed is especially producing, offering, marketing, import or export, or use of a product, which consists of the design or to which it is used. May be prohibited in principle, any of these protected activities, except as permitted by the rightholder, § 38 Design Act ( DesignG ). Exceptions granted § 40 DesignG especially made ​​privately and for non-commercial purposes actions for acts done for experimental purposes and for reproductions for purposes of making citations or of teaching with reference to the source and in a fair, non-interfering extent.

Be protected while only those features of the appearance of the designs that are either rendered visible in the application, § 37 para 1 DesignG, or those that produce a different overall impression in other samples, § 38 para 2 DesignG.

Design & Copyright

The right holder is granted a copyright -like rights to the commercial use of the image of the protected objects.

According to the older law (§ 6 Copyright Act aF ) the inclusion of individual pictures was not a prohibited reproduction in a written work. The literature review emphasized that it could actually only be single pictures, a pattern book alone with sample images is not covered by the exception. Copyright law and, in particular § 57 of the Copyright Act was in addition to the interpretation of the standard used for accessories and also considered television recordings at the opening of an exhibition with tasteful pattern legally protected subject matter than allowed.

The changes made to Article 13 of the Community Design Directive 98/ 71 EC supporting the amendment in § 40 GeschmMG formulated the limitation of exclusive rights in No. 3: reproductions for purposes of making citations or of teaching, provided such reproductions are the practices of fair trade compatible prejudice the normal exploitation of the design do not over charge and give the source. As a result, a contrario, that the reproduction of products is the right holders: When using action playback is any kind and any form of product illustration. The VerbietungsR (real ) subject such as playing pattern of modern products in picture books. You can start playback by about photo in a sales catalog. Illustrations as jewelry or decoration not fall under the exception provision. As an explanatory referral is necessary, may be taken as certain that about the commercial distribution of postcards is covered by the prohibition law of the copyright holder.

As an indication of the source comes after Eichmann information about the creative and commercial origin of the object of reproduction into account. Is the name of the designer known or readily ascertainable, it must be specified.

Case law on the question of what are the barriers provisions of copyright law analogous valid and are to be interpreted as citations, and teaching is, not yet available. What is needed is in any case a trade-off between the interests of the right holder and the interests of the person who wants to represent the pattern. For press releases in the sense of editorial coverage is to throw (GG Art. 5) into the equation in any case the fundamental right of freedom of the press. Who searchingly deals with product designs, certainly due to the fundamental right of academic freedom (Article 5 GG) may represent protected designs in a book about design. This would be covered by citation, while the didactic mediation about at a Fachhochschule für Gestaltung fall under teaching.

The picture of a protected design such as the ICE in a reference book or an electronic encyclopedia should be a problem, as long as the image illustrates the article. Is a free project but a common international images server are hosted on the without interlocking with corresponding articles of high quality pictures of protected items free of charge and for any use under a free license for the worldwide online retrieval, this could constitute a violation of the right, as you can not necessarily expect a citation. A significant difference for imaging of copyrighted objects, insofar as these can not rely on the freedom of panorama is not discernible.

Since the copyright commentary literature, the view is to be found, the mapping of vehicles in road traffic subject to the Freedom of Panorama, you might consider to apply this principle analogously. 2011 but has the charge of the design right the First Civil Senate of the Bundesgerichtshof decided that the picture of a design "for purposes of citation " according to § 40 No. 3 DesignG is not admissible if it only serves marketing purposes. The Fraunhofer -Gesellschaft undertakes research that deals with rail vehicle technology and has developed a Radsatzprüfanlage for the type of train ICE 1 for the German railway. In the exhibition catalog of an exhibition the Fraunhofer Society campaigned for their achievements and made ​​to their product railcar of an ICE 3 from. This figure serves purely promotional purposes, which is why this release was no longer covered by the Design Act, the First Civil Senate.