On October 9, 2008, Germany's Federal Supreme Court
decided its first case on substantive Community design law. The
Court stated that protection by way of an unregistered Community
design can only be acquired if the design was first made available
to the public within the geographical territory of the European
The claimant, a Hong Kong based company manufacturing household
products including a press for bakery products, filed, inter alia,
a design application published May 8, 2002 with the Chinese Patent
Office related to a specific press for bakery products. The
claimant started selling the corresponding products in June 2002 to
customers in the UK. During 2003, the defendant tried but failed to
negotiate an agreement with the claimant regarding the distribution
of the underlying product. Since the parties did not come to an
agreement, the defendant started selling a press for bakery
products manufactured by another company which was accused by the
claimant to be nearly identical to his own press for a bakery
The claimant mainly argued that the contested press was an
infringement of his rights conferred by an unregistered Community
design. While the Hamburg District Court allowed the claim, it was
rejected by the Hamburg Appeal Court.
On further appeal, the Court confirmed that the claim for cease
and desist was invalid, because – even if the claimant
obtained an unregistered Community design in 2002 – the
term of protection of three years had expired in 2005. Apart from
that, since further claims, such as for damages, were asserted as
well, the Court had to decide whether an unregistered Community
design right had been established in the past.
The Court held that the first disclosure of the design, i.e.,
the publication of the Chinese design application, did not meet the
requirements of Article 11 Community Design Regulation (CDR). This
provision grants protection for an unregistered Community design as
from the date on which the design was first made available to the
public within the Community which is presumed if it has been
published, exhibited, used in trade or otherwise disclosed in such
a way that, in the normal course of business, these events could
reasonably have become known to the circles specialised in the
sector concerned, operating within the Community.
The Court found the wording of the provision above to be
unclear: Must this act of disclosure have occurred within the
geographical territory of the Community or is the potential
knowledge of the circles specialised operating within the Community
sufficient? Notwithstanding this, with the amendment of the
provision of Article 110 (5) 2nd Sentence CDR, the law clarifies
the interpretation of Article 11 CDR in favour of the first
alternative so that the act of disclosure must have happened
geographically within the territory of the Community.
The claimant also argued that his press was first made available
to the public by delivering it to the territory of the UK in June
2002 and, therefore, that this act should have established
unregistered Community design rights. However, the Court rejected
this argument, finding the press not having been new on that date
due to the prior publication of the Chinese design application. In
fact, and contrary to Article 11 CDR, there is no territorial
restriction as regards the disclosure of novelty-destroying prior
art pursuant to Article 7 CDR. The Chinese market is monitored by
the domestic sectors of household articles, and official
publications of registered IP rights can or could have become
known. Furthermore, the CDR does not grant a one year grace period
for own disclosures of unregistered Community designs as it does
for registered Community designs.
As a result, only companies and designers presenting their
designs within the territory of the Community for the very first
time, e.g., on a fair, may acquire unregistered Community design
rights. This first – and final – decision of a
last instance court in proceedings on the merits as regards the
requirements of acquiring unregistered Community design rights
should put an end to the controversial discussions which, while
already calming down in Germany, appear to continue in other
jurisdictions, particularly in the UK: An act of disclosure outside
the territory of the European Community cannot establish an
unregistered Community design right whereas the very same act can
On 8 September 2016 (C-160/15), the CJEU ruled that the posting of a hyperlink to copyright-protected works located on another website does not constitute copyright infringement when the link poster does not seek financial gain.
The chapter on the UK summarises the IP court and litigation system in the UK, recent developments in relation to IP law and practice, the forms and availability of IP protection and trends and outlook in the IP sphere.
The former governing mayor of Berlin, Klaus Wowereit, a member of the German Social Democratic Party, SPD, has suffered a legal defeat in his year-plus battle with the German publishing house Axel Springer.
Securing effective legal protection for patents is a high priority for all businesses who seek the quick but safe entry of their new products into the commercial marketplace.
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