Legal starting point
The “natural” means of protection for the design of, e.g., commodities or articles of daily use is the registered design right.
According to Art. 2 (1) No. 4 German Copyright Act, works of “applied art” also enjoy copyright protection,
provided they are
personal intellectual creations with an individual character. However, fearing a devaluation of the legislative decisions incorporated in the differentiated regime of (German and European) design law, German courts only reluctantly granted copyright protection to works of applied art in the past. In particular, they asked for an enhanced degree of the object’s aesthetic content.
Copyright protection of applied art thus required that the design in question significantly surmounted an average design.
Judgment of the Federal Supreme Court (BGH)
In a recently published judgment (judgment of 13.11.2013, I ZR 143/12 – Geburtstagszug) the BGH explicitly abandoned this restrictive string of copyright case-law. It found that regulations of design law and of copyright law have to be construed and applied irrespectively of each other and that there is no justification for higher hurdles for copyright protection of works of applied art in comparison to other kinds of works (e.g. literary works, photographic works). Copyright protection of applied art thus “only” required that the design reaches an aesthetic degree enabling those circles susceptible for art and accustomed to conceptions of art to speak of an artistic accomplishment.
Consequences for the protection of designs
The registered design right will remain the most important means of protection of the design of objects serving an intended use (e.g. commodities or articles of daily use) regardless of the BGH’s recent decision. This is true already in view of the fact that the enforcement of registered rights is much easier due to the binding effect of the registration act. Moreover, in its judgment the BGH already stated that only those elements of the respective design not serving an intended use can be taken into account when evaluating the design’s aesthetic degree and that thus the fulfillment of the requirements for copyright protection might be somewhat less likely with a view to objects serving an intended use in comparison to other works of art. With other words: without protection through a registered design right, the creator will never be sure that he indeed enjoys protection for his works.
Be that as it may, the BGH’s recent judgment improves the legal position of those designers and their successors not (or no longer) possessing design right protection for their valuable product designs in Germany. As long as the product’s design possesses a significant aesthetic degree and individual character, claims against imitators can be based on copyright protection.