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horak.
Lawyers Hannover
Attorneys at law
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Georgstr. 48
30159 Hannover
Germany

Tel +49.511/357356-0
Fax +49.511/357356-29
info@bwlh.de

 

horak.
Lawyers Munich
 

Landshuter Allee 8-10
80637 Munich
Germany

Tel.: +49.89.2500790-50
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munich@bwlh.de

 

horak.
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1130 Vienna
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Tel.: +43.1.8761517
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Design Infringement

Design rights infringement proceedings are steadily growing. This is also due to a frequently difficult managing of the protection rights of a product.

In addition to legally registered design rights, not registered design patent are actually allowed, and their legal protection begins with the placing on the market of the product.

These not-registered (yet) EU designs, however, are often the subject of legal uncertainties and problems. Above all, overlapping copyrights or “sort of”-protective rights from the area of competition law could also be considered potential breaching risks.

Design protection and design infringements proceedings are inevitably connected.

Design protection for forms and colour schemes

Nowadays, the design plays a significant role in the purchasing decision. It creates impulses/stimuli and awakes particular emotions; it is not surprisingly, that companies uses unusual forms and colours in order to attract and bind customers emotionally.

Design Patents: protect the form of appearance of your products!

Registered designs protect the colour and shape of almost all industrial and artisan products, such as clothing, furniture, fabrics, ornaments, graphic symbols etc. Parts of the product can also be protected: for instance, the sole of a sport shoe or a cap of a writing utensil.

With a registered design, we grant a temporary monopoly on the shape and colour of a certain product.

The visual representation of the design submitted with an application, determines the subject matter and scope of the copyright and is therefore of central importance. Only what is evident from the illustration, it is considered protected.

Design patents can be registered by companies or individuals. The application is made through the German Patent and Trademark Office (DPMA) and the terms of protection amount to a maximum of 25 years from the filing day.

Design Patents conferring rights

As the owner of a registered patent, you have the exclusive right to use the design. You may prohibit third parties from using your design in the manufacture, sale or import and export of products. As a design owner, you can take action against any third party that is breaching your protective rights.

European Design Application and International Design Protection

Designs registered at the German Patent and Trademark Office (DPMA) are valid solely in the Federal Republic of Germany. If you want to bring your design to market in the member states of the European Union or in other countries, you can also register an EU-wide “Community design” or have your design registered internationally.

Protective rights included in a design patent

Design patents protect your design and allow you to use this specific pattern throughout the terms of the protection. Third parties have no rights to use the registered design without your permission. If someone uses your registered design in an unauthorized manner, you can demand the destruction of the product concerned. In addition, you will have the chance to receive a compensation for damages from the infringer party.

Request for legitimacy claims against a design rights infringement

Instead of starting a design rights infringement proceeding with a warning letter, a request for legitimacy claims is, in most cases, recommendable. This is a much milder action beside a notice of warning. In this case, the design patent infringer will be notified in regard to the objecting facts and his own protective rights; in this section additionally, the reasons why the infringer thinks is entitled to such actions, will be requested.

A request for legitimacy claim, does not subsequently incur in any costs; in addition, the infringer has the opportunity to consider his position and avoid an expensive infringement proceeding in time. If no agreement is possible, it is than necessary to recur to a written warning letter and eventually to a legal proceeding.

Warning Notice in case of design infringement

With a notice of warning, the facts alleged and the infringed design protection are addressed to the infringer. In this case, a compensation for the breaching action will be requested; if an agreement does not take place, a legal proceeding will be issued.

Design Infringement Proceedings

A breach of third parties property rights can primarily be prosecuted by means of civil law before the Chamber regarding legal design disputes of the District Court.

Listed below, the most common claims on design rights infringement proceedings:

  • Interim Injunction;
  • Claim for abatement or removal (destruction claim);
  • Property claim/Compensation for damages;
  • Disclosure.

At the end of the process, the party who lost the case is in charge of compensating the legal costs of the whole proceeding.

Patent infringement proceedings are not particularly expensive in Germany; a first instance procedure costs a total of approximately 7000-15000 EUR and this is the most favourable value in Europe.

Nonetheless, the most important design rights infringements courts in Düsseldorf, Munich and Mannheim have achieved an excellent reputation thanks to their rapid and reliable proceedings ‘decisions.

Injunctive Process in case of design rights infringement

It could take some time for a legal decision to be taken. In case of an urgent need, a preliminary injunction could provide interim relief.

With an injunction the design rights infringer may be prohibited from offering the copied or counterfeit products, under penalty of an administrative fine or order custody. As a general rule, the Court of First Instance is responsible for the application of an interim injunction. This latter, may be issued without consultation with the other party.

If a provisional injunction proves to be unjustified, the opponent can assert a claim for damages against the applicant.

For further questions, do not hesitate to contact one of our attorneys.

Legal Prosecution in case of design  infringement

An intentional infringement of property rights is punishable by law and the person involved can be prosecuted.

Basically, there is the possibility to file a criminal law-complaint.

The holders of the infringed design rights (or of the exclusive license) are the only person entitled to apply. A penal application must be submitted at the District Court (Amtsgericht) within a period of three months after the offense have been reported (§ 77b StGB-German Penal Code).

If you would like to have more information about this area of law, please do not hesitate to contact us at any time! You could rather use the online form or send us an email at: info@bwlh.de . One of our experts will get back to you as soon as possible.

 

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© German lawyer Michael Horak 2002-2017

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