red dot strengthens legal position against plagiarism
Current information from the new Who's Who in Design, Vol. 2
The Cologne Higher Regional Court has passed an interesting judgment for designers and design-oriented companies.
The background: if a design is not protected by copyright – which happens only in rare exceptions – and a registered design patent has not been applied for, only competition regulation claims from § 1 UWG can help against illegal copying under the aspect of the so-called "dishonest plagiarism".
The precondition for a claim from competition regulations, however, is always that the copied product is accorded a so-called "competitive uniqueness". This means that the concise design or specific characteristics of the product have to be suitable to point to the operational origin or particularity of the product. The product has to be above average with respect to its design.
The claimant has to demonstrate and prove that the original is actually something special during the trial. This often causes problems since it can be difficult to raise the judge's necessary understanding for the particularity of the new design.
The Cologne Higher Regional Court has passed an interesting and helpful decision for designers in this context. In a recently published judgment from 2002, the court had to decide whether the copy of designer sunglasses was admissible or not. The copied model had received, among others, the red dot for highest design quality. The judgment reads as follows:
"Competitive uniqueness can also be accorded to glasses. If it receives design awards, this generally speaks in favor of a design that – pointing to the origin – goes beyond the customary formal language".
In other words: a product awarded a recognized design award like the red dot can be defended against plagiarism under the aspect of competitive regulations more easily than a product that hasn't been awarded.
You can get detailed information about this issue in the contribution by attorney Dr. Achim Herbertz for the compendium "Who's Who in Design, Vol. 2", which you can order right here.