Individual Character, Art. 6 CDR/§ 2 (3) German Design Act (DesignG)

According to Article 6 (1) No. 2 CDR (corresponds literally to § 2 (3) German Design Act, DesignG), a registered Community design has individual character if the overall impression it creates on the informed user differs from the overall impression created by another, i.e. any other design that was made available to the public before the date of application.

Only distinguishability, no peculiarity required

Individual character means distinguishability (in contrast to the level of creation under copyright law) of other designs from the well-known wealth of forms. "Individual character " has a design if it creates a different overall impression than an older design. The distinctiveness depends on the design freedom of the designer in the respective product category (e.g. in "handbags"). Special peculiarity is not a prerequisite.

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Freedom of design decreases with pattern density ("Musterdichte")

Whether a design has individual character can no longer be judged abstractly under the DesignG and the Community Design Ordinance (CDR), but always on the basis of each individual design known in advance. In other words, it is not a fictitious abstract peculiarity of the entire known treasure of forms with which the pattern is compared, but a direct individual comparison applies (European Court of Justice, judgement of 20 October 2011, C-281/10 P - PepsiCo, Inc./Office for Harmonisation in the Internal Market (OHIM); German Federal Court of Justice, decision of 19 May 2010 - I ZR 71/08 - Untersetzer, Rz. 14). The individual character is therefore a precondition for protection. However, it has no influence on the scope of protection of a design.

The freedom of design, in turn, depends on the pattern density in the product class concerned. Pattern density means: How many designs are there in the product class? So there is an interaction: the higher the pattern density, the less the design has to be distinguishable from other designs.

Scope of protection of a design

Scope and density of protection

The density of designs determines the scope of protection of a design or design. A low pattern density leads to a large scope of protection of a design or design. When determining the scope of protection pursuant to Article 10 II CDR - as well as when determining the individual character pursuant to Article 6 II CDR - the degree of freedom of the designer in developing his design must be taken into account. There is an interaction between the scope of design of the designer and the scope of protection of the design: A high density of the design and thus a small scope of design of the designer leads to a narrow scope of protection of the design In contrast, a low density of the design and thus a large scope of design of the designer leads to a broad scope of protection of the design (German Federal Supreme Court, judgment of 19 May 2010 - I ZR 71/08 - Untersetzer). As a result, even major deviations from the scope of protection are covered, i.e. infringements of the design. Conversely, a high pattern density leads to a low degree of protection, so that even minor changes lead to a different overall impression.

Scope of protection and use of the designer's freedom of design

The scope of protection is also influenced by the extent to which the designer has maintained the distance to the treasure of forms (i.e. to already existing designs) (German Federal Supreme Court, Kinderwagen II).

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Author: Attorney (Rechtsanwalt) for Design Law and Specialist Lawyer for Intellectual Property (Fachanwalt fuer gewerblichen Rechtsschutz) Thomas Seifried