Design protection is available for two- dimensional or three-dimensional designs of a product.
The design is an intellectual property right that gives its owner an exclusive right to use an esthetic appearance (shape, color, form). Until recently, the design was referred to as registered design in Germany.
As with a trademark, design protection may be obtained at national level, EU-wide as a Community Design, or as an International Registration.
The property right is created when the design is new and has individual character.
A design is considered new if no identical design has been disclosed prior to the filing or priority date. A design is considered to be disclosed if it has been made available to the public in such a way that the circles specialized in the sector concerned, operating within the European Union, have had an opportunity to take notice of the design. This may occur by way of publication, exhibition, use in trade, or in any other way within the European Union, but also in non-European countries such as at leading trade shows in China or the USA.
When assessing individual character, the overall impression created by the design is important. It must be different from the overall impression of other designs published prior to the filing date/priority date of the design. This assessment takes into account the freedom of the designer in developing the design. The greater the design freedom, the more the design needs to differ from previously known designs. It is also taken into account whether a large number of similar designs already exist in the respective sector. In this event, the requirements for the degree of differentiation may be correspondingly lower.
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