Design (Patent) Protection
The Design Act protects designs and models. Their protectability requires that the products are new and unique. If they fulfil these requirements they are protected against imitation. The protection can only be applicable if the design or the model has been registered at the German Patent- and Trademark Office; a fee has to be paid for the registration. The period of protection is five years and is renewable up to 20 years.
The infringer of the imitation right can be sued for injunction, and in the case of fault he can be sued for damages
The copyright of designs which chooses the term of originator for the holder of the right is also designated as “small copyright” or as “industrial property right on the basis of copyright”. Mainly the opinion is predominating that the relationship to the copyright can be seen in the fact that the copyright of designs protects forms of surfaces and spaces which …”stimulate the sense of colours and forms of a person, thus they satisfy an aesthetical need”. Even with respect to the protection of copyright however, the characteristic of aesthetics is not always applicable for the determination of the industrial quality and also as to the copyright of designs critic has been raised concerning the formula of the esthetical surplus.
Novelty and uniqueness
The wording that the product should be new and unique doesn’t answer to the question which requirements it should meet. In the opinion of jurisdiction the term of novelty is considerably determined by the aspect of the industrial functionality. As to the characteristics of uniqueness the jurisdiction drew parallels to the extend of the copyright with the requirement that an independent and creative performance” is required. The Court however stated that as to the extend of the protection in the copyright of designs “considerable low standards” had to be applied. In literature the opinion predominates that for a protection of registered designs “the lower degree of a creative performance going however beyond the skill of an average developer on the respective field and thus beyond the workmanlike” should be sufficient. This formulation indicates the difficulty of the delimitation of (art-) copyright and copyright of designs by means of the characteristics of the personal intellectual creation and the uniqueness in any individual case.