GERMANY Trends and Developments Contributed by: Bernhard Thum, Andreas Mötsch, Jonas Weickert and Frank Eichelhardt, Thum & Partner | Thum, Mötsch, Weickert Patentanw
Design Law EU design reform and the rise of digital designs Design protection is gaining importance as product appearance and user experience drive differentiation. The EU design reform package modernises the frame- work, including by better accommodating digital and virtual design forms, and by adjusting terminology and procedural elements. The staged implementation means businesses should review filing strategies and representations, particu- larly where design assets are created digitally or where product experience is delivered through interfaces. Companies should also review how they combine design registrations with trade mark and unfair com- petition claims in enforcement scenarios. Practical takeaways • Audit design portfolios for digital products and user interfaces, and consider whether registration practice should change. • Align filings and enforcement planning with the phased application of the reform. Repair clause and spare parts markets The reform also addresses spare parts through a repair clause concept, aiming to balance design protection and competition in aftermarkets. For industries such as automotive and durable goods, this may require enforcement strategy adjustments. In Germany, spare parts disputes often rely on a multi- right toolkit. Where design protection is limited in cer- tain situations, trade marks, unfair competition and technical rights can remain important, depending on market presentation and consumer perception. Practical takeaways • Reassess aftermarket enforcement programmes and ensure they do not rely solely on design rights. • Align packaging, labelling and marketing practices with the evolving legal environment to preserve enforceability.
Trade Marks, Copyright and AI-Related Developments
Trade mark law: bad faith and origin indications Trade mark disputes in Germany continue to evolve, with increasing attention on the boundaries of bad faith as an absolute ground and on the protection of geographical origin indications. Recent decisions illustrate that bad faith requires more than mere exploitation of another party’s reputation; it typically requires an intention to obstruct or to harm third-party interests, and the burden of proof lies with the party challenging the registration. This reinforces the need to select the right tool: confusion-based and reputation-based claims remain central where bad faith is hard to prove. In practice, bad faith remains a narrow and evidence-heavy ground compared to confusion-based arguments. Origin indication disputes show the practical risk of marketing-driven descriptors. If consumers perceive a descriptor as indicating origin rather than recipe or style, use for products without a sufficient connection can be prohibited. This makes packaging, imagery and advertising context legally relevant, not just the word used. Practical takeaways • Do not rely on bad faith unless evidentiary condi- tions are likely to be met; deploy the most direct trade mark arguments. • Review geographic descriptors and packaging elements for origin implications, especially in con- sumer goods. Copyright: applied art, information claims, and text and data mining Copyright continues to affect products and market- ing materials. Case law has emphasised that the protection of works of applied art requires sufficient originality, and utilitarian products with function-driven forms may struggle to meet that threshold. This makes designs and trade marks more predictable tools for many product-led businesses. Another practical risk area is authors’ claims for infor- mation and additional remuneration, which can be rel- evant where creative content is used extensively in
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