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Design Protection / Copyright Law

Supreme Court rulings of fundamental importance which we initiated have remained valid even after the wide range of legislative measures to improve protection against product piracy. On the other hand, there are not yet many Supreme Court decisions on European design law, which is still in its infancy. We are at present appearing in a number of trials on some open questions in the field of design law, which are suitable for taking to the Federal Court of Justice or the Court of Justice of the European Union.

Design Protection / Copyright Law

Front Kit II – judgment of 28th October, 2021, CJEU C‑123/20
rospatt osten pross achieves a change in the established German case law from the Court of Justice of the European Union on behalf of a famous sports car manufacturer, which now helps all design creators to obtain flexible protection against the imitation of parts of their designs. In a landmark verdict, the Court of Justice allows the protection of partial areas of an appearance by unregistered Community designs with only low requirements. The Court recognises that the disclosure of an overall product may give rise to a plurality of unregistered designs for parts of the overall product. Contrary to what has been assumed by German case law so far, neither an independent act of disclosure in relation to the respective partial design is necessary, nor does the partial design have to have a certain independence and unitary form. Rather, it is sufficient that the partial design is clearly identifiable when the entire product is disclosed and is clearly defined by lines, contours, colours, the shape or texture.

Front Kit – BGH 2020 GRUR 392
The Düsseldorf Higher Regional Court had refused protection for areas of the front of a new hyper sports car as an unregistered Community design on the grounds that the shape lacked a certain degree of autonomy and unity. The Federal Supreme Court sees a need for clarification and refers questions to the Court of Justice of the European Union for a preliminary ruling on the conditions for the creation of an unregistered Community design for parts of a product.

Regalsystem (Shelf system) – BGH GRUR 2013, 951
The imitation of a product that is competitively unique is unfair if the deception as to origin could be avoided. If the original product needs replacing and extending, it may, however, be permissible to take over the features of the original product in order to ensure technical compatibility. According to this decision by the BGH, this also applies if the customers have a legitimate interest in the visual compatibility of the products.

Holzstühle (Wooden Chairs) – BGH 1996 GRUR 767 = 1998 IIC 105
Germany‘s Federal Supreme Court establishes basic rules for the differentiated testing of the novelty and uniqueness of a registered design.

Cartier-Armreif (Cartier Bracelet) – BGH 1994 GRUR 630 = 1995 IIC 121
For the first time in performance protection under competition law also, Germany‘s Federal Supreme Court grants the claim, which had been rejected in the first instance, to information about the origin and distribution channel of imitations, which was introduced with the Product-Piracy Law of 1990 for intellectual property rights. The claim is extended to include foreign suppliers and buyers.

Beschlagprogramm (Line of Dress Plates) – BGH 1986 GRUR 673
Germany‘s Federal Supreme Court grants complementary protection under unfair competition law to recurrent characteristic features of a product line.

Stahlrohrstuhl II (Steel-Tube Chair II) – BGH 1981 GRUR 820
Anyone contesting copyright-law protection for an art work based on prior art must explain and demonstrate the specific appearance of that known geometric shape.

Leuchtenglas (Lamp Glass) – BGH 1981 GRUR 273
Germany‘s Federal Supreme Court reaffirms its own decisions to the effect that a discrete part of a complex design shape can be accorded separate protection under registered-design law (known as element protection).

Haushaltsschneidemaschine I + II (Household Slicing Machine I and II) – BGH 1978 GRUR 168 = 1978 IIC 495; 1981 GRUR 269
In a lawsuit which had gone through five levels, involving two appeal judgments on points of law, Germany‘s Federal Supreme Court recognized the protection, under registered-design law, of a housing proportioned in a certain way, with a cuboid shape. In so doing, it confirmed its rulings to the effect that protection against imitation of design shapes can at most only be refused if their basis is objectively and exclusively technical.

Dreifachkombinationsschalter (Triple Combination Switch) – BGH 1975 GRUR 81
Germany‘s Federal Supreme Court adheres to the principle that, while the requirements applicable to the creative uniqueness of registered designs must not be too low, they are nevertheless much lower than in the case of a work of art protected under copyright law. The court makes it clear that this principle also applies when the design shape consists of a combination of previously known elements.

Elektroschalter (Electric Switch) – BGH 1974 GRUR 406
Germany‘s Federal Supreme Court clarifies the Strassenleuche” (“Street Light”) decision 

of 1961 to the effect that concordance with a registered design indicates the presence of subjective imitation even when the imitator had no knowledge of the protected original. The court makes it clear that such indication does not exist if there is doubt as to whether the original was already being marketed at the time when the contested product was created.

Stahlrohrstuhl I (Steel-Tube Chair I) – BGH 1961 GRUR 635
Germany‘s Federal Supreme Court recognizes the hind-leg-less (free-swinging) chair by 

Mart Stam as an aesthetic creation that ranks as a work of art. Whether it is judged as qualifying as a work of art depends solely on the situation and viewpoints prevailing at the time of its creation.

Hummel-Figuren I‑III (Hummel Figures I‑III) – BGH 1952 GRUR 516; 1961 GRUR 581; 1970 GRUR 250
In this series of decisions, Germany‘s Federal Supreme Court lays the foundation for protection of the design of artistic child figures under copyright law and registered-design law, with complementary protection under unfair competition law. It also establishes the principle that religious congregations have exclusive rights of use with regard to copyrights belonging to their members.