Design law horak Lawyers/ Patent Attorneys, Hannover/ Munich, Germany: European Design Application, German Design
The German Design Act provides protection for both two-dimensional “designs” (e.g. fabric design) and three-dimensional models. These must be designs or models of commercial objects that appeal to the aesthetic sense for colour or form. A prerequisite condition for protection is the novelty and distinctiveness of the object, i.e. resulting from creative activity of the designer. Since the new design law entered into force, the previous stricter requirements now demand a certain “level of originality”. Thus the new design law offers greater protection for physical forms.
However, under design law, which entered into force in 2003, separate parts of an end product, for example a car, can only be protected if they are visible during their intended use. This limitation results from the EU harmonisation. However, separate parts, such us a wing, a bonnet or a shock absorber can be protected as designs, as long as they fulfil the requirements for protection as separate parts.
A design is – similarly to a utility design – an unchecked protective right, but there is no monopolist supervisory body for copyright in Germany. Design protection is usually created by an entry in the register (European protection for a limited period can also come into being without an entry) and when substantive prerequisites exist, whereas copyright protection is guaranteed by law. At the same time, it is “easier” for a designer to obtain protection of registered designs than protection by copyright, since the latter requires a significantly higher degree of creativity that exceeds the prerequisites novelty/distinctiveness necessary for protection of registered designs. Therefore, it is usually recommended for a designer to seek protection of registered designs, which can by the way exist parallel to protection by copyright.
Further substantial differences include the limited maximum validity period of protection of registered designs which amounts to a total of 25 years after the amendment of the German design law in 2003, as well as the possibility of collective registration of up to 100 designs or models for the same goods category. This means that for example 100 different fabric designs can be applied for in just one collective act of registration. In the case of a an unchallenged design, it is assumed that protection of registered designs exists, whereas the author basically has to present and prove authorship, that a sufficient degree of creativity exists, etc.
Based on the European Community Directive on design, as of April 2003 you can register Community designs that offer numerous cost-efficient possibilties and protection all over Europe regarding their prerequesites and validity and others.
Starting with the day of registration the design is protected for a maximum of 25 years (registered Community design- 25 years; exploited unregistered Community design - 3 years) as long as the utility design is maintained, i.e. especially by paying the three renewal fees to the German Patent Office. In spite of the harmonisation of law in the European Union there is still no German unregistered design.
At the moment there is no worldwide design, but there is a Community design effective for the whole of Europe. A German design is protected in Germany. Additionally, at international level, the Hague agreement provides protection for commercial designs or models.
Whereas in Germany inventions have to be registered before they can be announced in any way whatsoever, there is a so called period of grace of 12 months for designs (and utility designs) entering into force with the new German Design Act.
Under certain conditions which absolutely have to be fulfilled (especially: publication by applicant) designs can be announced prior to their registration.
German designs come into being by means of a registration at the German Patent Office after an application has been filed. For this purpose there is a form by the German Patent and Trademark Office (http://www.dpma.de). You should consult an expert in case a collective registration is advisable.
At first each application received undergoes a primary check, the purpose of which is merely to state whether there are evident lacks, e.g. whether any documents are lacking.
At the end of the checking procedure an acceptance certificate or a rejection is issued. Then a design is published or entered in the Register of Designs.
Contrary to patent or trademark law, there is no deadline for interference proceedings in the area of design law.
Contrary to the utility design cancellation procedure before the Patent Office, the first step against a design consists in a costly petition to cancel its entry in the register before a Regional Court.
Usually a sketch, a description and if needed a visual model are necessary. In some cases we need further details which we cannot generally state due to the complexity of the given object.
In the initial phase we only need general information on the area in question (furniture, fabrics, consumer goods, technical design, package, etc.) to plan further proceedings so that our expert in charge can contact you and settle further details with you, including estimation of costs.
Public procurement law comprises the Standard Official Contracting Terms for Services, Standard Building Contract Terms, Standard Official Contracting Terms for Independent Professions, European public procurement law, some parts of the Non-Restraint of Trade Act (Cartel Act) and the Fees Ordinance for Architects and Engineers.
Public procurement law provides an opportunity for competing enterprises to take action against legally incorrect procurement of public contracts.
The Federal Ministry of Economics offers an opportunity to download relevant norms on the following topics:
In the fourth part of the Cartel Act (Non-Restraint of Trade Act) the general principles of public procurement are regulated and the procedure for reviewing the procurement procedure before the procurement chambers and higher regional courts is standardised.
According to the revised text of the Regulations on the Procurement of Public Contracts published on 11th February 2003, public ordering parties are obliged to apply Standard Official Contracting Terms when a certain contract value is exceeded. You can download the latest version of the Standard Official Contracting Terms here from the homepage of the Federal Ministry of Economics.
Effective as of 1st November 1997 new regulations on the Europe-wide procurement of services entered into force with the publication of the Standard Official Contracting Terms for Independent Professions (published in the Federal Gazette Nr. 164 of 3rd September 1997). They must be taken into consideration by all public ordering parties when the EU threshold values (presently approx. € 200,000) are reached. These regulations, however, do not yet apply to certain ordering parties, namely the sector ordering parties (owner-operated communal enterprises of water, energy and transport supply).
Standard Official Contracting Terms contain detailed regulations on the awarding of delivery, service or construction contracts. The Standard Building Contract Terms are deposited at the Federal Ministry of Transport, Building and Housing.
Since 1st January 1999 an amended version of the Common Procurement Vocabulary (CPV) has been in force, regulating the description of the contractual goods and services according to the recommendations of the EU-Commission. You can access the latest version of the CPV at http://simap.eu.int/.
The following principles might be extracted from the Cartel Act (especially §§ 97, 101 of the Non-Restraint of Trade Act):
Competition (free access to the procedure, considering all appropriate applications, participation of a number of applicants, prohibition of conduct contrary to fair competition by the contracting authority and applicants, fair competition)
Equality of treatment (equal treatment of all applicants, prohibition of discriminating conduct, neutrality principle)
In principle, public tender has priority before other forms of procurement. This form must be chosen when the contract value exceeds € 25,000.
As far as restricted invitation to tender is concerned, the circle of the potential applicants has been limited by the contracting party. The contact value must not exceed € 25,000.
In the case of negotiated tender, the contracting authority may award the contract to a contractor of his choice. The contract value must not exceed € 2,500.
As long as the contract value exceeds € 25,000 and lies below de minimis (according to EU law, compare the respective threshold values in the Regulations on Procurement), the German regulations apply and a national procurement is necessary with the following focus points:
evaluation of bids, possible rejection of bids, or complete or partial cancellation of the procurement
If the contract value exceeds de minimis (under EU law), the following requirements have to be checked and, moreover, European procurement regulations apply in principle, so that a European procurement must take place:
A restricted procurement can in principle take place in case of a contract value of up to € 25,000. However, under exceptional conditions, public invitations to tender can allow restricted procurement even if the threshold value of € 25,000 is exceeded. There are no differences as far as the basic procedure is concerned, restricted procurement is characterised only by the limitation of access of potential tenderers.
Negotiated tender can in principle take place only if the contract value does not exceed € 2,500. Nonetheless, this form of tender is the most popular one.
Generally speaking, negotiated tenders in case of contract values of up to € 500 include the following steps:
According to procurement procedures, the standard official contracting terms are obligatory for public contracting parties in view of their A-parts starting from the threshold values contained there. It is only by a change of the legal form into an organisation governed by private law that the binding obligation does not apply. This exemption could be the reason for the change of the legal form, even though the A-parts only constitute internal administrative regulations (i.e. no external legal norm) and the B-parts are interpreted as a part of the General Terms and Conditions of Trade.
If you are a contracting authority obliged to public tender, we revise and assist your public tender, from the planning phase on to the awarding of contract until the service is performed and finished.
If you participate in a tender, we enforce your claims for a proper procedure and prevent – in case of unlawfulness – that the contract is awarded to competitors.
Of course, we also represent you in case of official and legal procurement procedures before procurement chambers.
We need to know exactly, which services of what value under which conditions are to be awarded and which have already been offered by public announcement. Further details must be discussed individually.
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