Design Protection – Legislation and Development.
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Design Protection – Legislation and Development.

A change in design law should allow third-party manufacturers to reproduce visible spare parts. A transitional period provided for by law could make the whole process a lengthy one.

The European Design Protection Directive 98/71/EC* provides that the appearance of the whole or a part of a product may be protected under certain conditions. The design owner thus has the sole right to use this design. For car manufacturers, it is thus regulated that the design of a vehicle is protected and thus prevents the appearance of a vehicle from being copied. These visible (external) spare parts must be replaced, e. g. in the event of an accident, and must correspond 100% to the originally installed parts in shape and dimensions.

  • Design protection exists for the visible, body-integrated spare parts such as bodywork, windows, mirrors, headlights, taillights.
  • Excluded from design protection are all spare parts that are not visible, such as all parts under the bonnet.

Two parties with diametrical interests

  • On the one hand there are the automobile manufacturers, who claim the design right for themselves and justify it with, among other things, the preservation of jobs and the issue of safety.
  • On the other hand, the proponents of liberalisation, such as parts wholesalers and consumer protectors, welcome a new legal regulation that allows fair competition and possibly reduces the cost of repairs for the consumer.

This requested legal regulation is known as the repair clause: “Competition in the market for visible car spare parts shall be liberalised to the benefit of consumers. To this end, a so-called repair clause is to be introduced into German design law, according to which spare parts that are bound by shape are not protected by design law. In this way, an opening of the secondary market for spare parts is to be brought about.”**

There is as yet no complete harmonisation of national legislation at European level, with the result that different regulations have developed within the Union: Some member states have introduced the repair clause, e. g. Spain, Italy, Poland or the Benelux countries – in other countries there is no repair clause.

The current state of proceedings

The draft law was approved by the Federal Cabinet, submitted to the Federal Government and forwarded to the Bundestag. However, the repair clause contained therein (§ 40a DesignG-E) will remain ineffective for decades due to a planned protection of existing design protection rights (§ 73 (2) DesignG-E).

*Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs. Official Journal of the European Communities L 289/28.

**Draft law to strengthen fair competition; Printed: 232/19; p.2.

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