The beginnings of design protection in Germany: From peripheral concern to legislative priority

In this article, Roland Weede explores the rise of design protection in Germany, from a neglected afterthought to a recognised necessity of property law, exploring how shifting legal priorities and industrial pressures shaped its evolution to today.

Get in touch

Roland Weede | rweede@hlk.eu

Wherein, then, lies the so very great difference, whether one thinks, writes, and has printed (authors, composes), or whether one thinks, paints (invents a design), and then reproduces this, often with even greater difficulty than printing entails, not on paper, but upon cotton or silk fabric? [1] – (Ferdinand Stolle: Der Musterschutz, in: Die Gartenlaube, No. 44, p. 604 ff.)

The lament above, published in the German weekly “Die Gartenlaube” (The Garden Arbor) more than 150 years ago in 1857, might be on the minds of many IP professionals dealing with design rights even today.

At the time the article was written, other countries and trading partners of the multitude of German states had already implemented legal protection of designs decades ago: In France, designs had ben regulated since 1806, by the “Law on Designs and Models”. In the United Kingdom, the Design Registration Act or 1839 had delegated protection to a central Design Registry (being part of the Board of Trade) in 1839. In the 39 states of the German Confederation, however, no such law was on the horizon. despite multiple industry leaders lobbying for it.

This was not the case for other types of rights: Many German states had already enacted patent statutes (in the Kingdom of Bavaria and Prussia already in 1815); in the field of copyright, there was a Federal “Act for the Protection of the Ownership of Works of Science and Art against unauthorized reprinting and reproduction” since 1841, harmonizing copyright protection across the German states, and distinguishing, for the first time, between copyrighted art, and “applied art”, which was excluded from copyright. However, design protection was still lacking. Only a few states closest to France had copied the French idea of design protection.

The idea that the aesthetic design of items crafted for daily use was a value in itself, was not new: the medieval rules of craft guilds were probably the first regulatory frameworks than dealt with the design of products and the protection of work results of “masters”. However, since such rules could only bind guild members, the aim of such rules was more the prevention of (unfair) competition between members, than the absolute protection against imitation. While the earlier development of the printing press had already instigated the development of more or less stringent protection of text and images against reproduction, once a work had been used as a design for an industrial product (“applied art” in the literal sense), all protection was lost.

This dissonance and the apparent lack of interest of the collective legislative branch in the protection of designs was the motivation for the author of the article cited in the beginning. The lack of design protection was identified as a clear problem for the fledgling textile industry in Germany: It led to German producers imitating French and English fabrics rather than spending money on draftsmen who could create original, aesthetically pleasing and yet technically feasible designs. While copying foreign designs saved some costs, it had the drawback that the products of German industry could often only be sold as cheap counterfeits. The few producers who saw it as a matter of honour to create original designs, constantly had to fear being “robbed” by their less honourable German colleagues, who would copy them just as much as they did foreign competitors.

After the lack of designers had been identified as a problem, several German states went to great lengths to create industrial design schools, only to see their graduates moving abroad for work, since the lack of design protection in German states had the effect that no money could be gained by paying people to create original designs (as reported as on of the main motives for design reform n Meyer’s Universal Encyclopedia of 1908).

With this background, it is surprising that the design protection law (Gesetz zum Schutz von Mustern und Modellen), when it was finally enacted in 1876, was actually the first law for the protection of intellectual property in the territory of the newly founded Reich. A Germany-wide patent law was only enacted in 1877, and a law on utility patents followed only in 1891, after decisions by the highest courts had concluded that the usefulness of a product or of certain product features has no influence on the novelty of the design and its individual character, effectively removing technical features from the scope of protection of designs.

The new law was an immediate success, with the millionth design being registered only in 1893.

As a result, while designs had a slow start in Germany, they became an established part of IP at the end of the 19th century as the first centrally regulated IP right – even if the registration was not at all centralized, with design registers being kept by the local magistrate’s courts (Amtsgerichte). This decentralised nature of the register was, in fact, only corrected in 1988, when design registration was finally centralised at the German Patent and Trademark Office. This fragmentation may have contributed to design rights still having a low profile when compared to patents or trade marks, even today, and design protection often being overlooked in the creation of a filing strategy.

Yet today, with European Union community designs offering protection for the whole trading block at a fee that is not much higher than single trade mark registration in a single European country, designs are the most cost-effective type of IP right. With many applications being granted on the next day, they are also the quickest to obtain registration. The steady increase of design filings at the EUIPO (ca. 5% p.a.), shows that this realisation is gradually gaining ground.

So while design rights may have taken the long road to recognition (at least in Germany), they’ve quietly become one of the most practical and powerful tools in today’s IP toolbox – and more and more businesses all over Europe are finally catching on.

[1] “Worin liegt denn der so große Unterschied, ob jemand denkt, schreibt und drucken lässt (schriftstellert, componirt), oder ob er denkt, malt (ein Muster erfindet) und dieses dann häufig mit noch mehr Schwierigkeit, als der Buchdruck mit sich bringt, statt auf Papier, auf baumwollenem oder seidenem Zeuge vervielfältigt?”

Need assistance?

This is for general information only and does not constitute legal advice. Should you require advice on this or any other topic then please contact hlk@hlk-ip.com or your usual HLK advisor.