A couple of minutes ago I was called in by a KSNH paralegal to assist her in filing an application for a national German trade mark application utilising the new DPMAdirektWeb facility which is available to the public since November 12, 2013. She had just arrived at a step where the items of the list of goods and services are to be entered. To her surprise there was no visible option just to enter free text. The user appeared to be forced to select from a picklist drawn from a lager database of goods and services already known to the DPMA from earlier applications. And, it turned out that the specific item the client wanted to see within the list of goods and services was not available in the picklist offered by the new website.
I couldn’t believe that the new filing system is crippled that way and immediately called a DPMA hotline number indicated on the DPMAdirektWeb page. To my surprise the lady at the other end of the line confirmed that it is not possible to enter arbitrary text into the list of goods and services.
Well, is such action of the DPMA really within the bounds of applicable law?
As far as I know neither German Trade Mark Act nor Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 do comprise any provision allowing Offices to hinder applicants to file trade mark applications covering goods and/or services which are new to the respective internal database of acceptable items.
It is just that Offices like to streamline their internal processes by preferring to deal with pre-approved lists of goods and/or services only.
The German Patent and Trade Mark Office (DPMA) is one of many administrative agencies of the Federal Republic of Germany. Its task is to implement the law, not to create new law.
I have not yet bothered to obtain an Official statement of the DPMA concerning this matter. But I would not be very much surprised if they argue that any applicant insisting on using an individually worded list of goods and services still may refer to a paper-based way of filing the application. However, doing so comes with EUR 10,– extra costs for Official application fees. And, yes, we patent attorneys usually can switch to the DPMAdirekt on-line filing facilities which have ownership of a smartcard as a prerequisite.
But I prefer to see this as a matter of principle: If the law allows to file individually worded lists of goods and services, every filing facility should support such kind of freedom.
I can see that DPMA might strongly feel encouraged by the bad example given by OHIM to proceed on a way of nudging applicants to follow paths where the interest of the respective administrative agency to have smooth, fast and cheap internal workflows is fostered at maximum at the expense of the applicant’s interest to have a trade mark perfectly tailored to its needs. However, OHIM at least allows free text in lists of goods and services – although the current as well as the future OHIM on-line web filing TM facility (operative from December 02, 2013 onwards) both have plenty of nag-screens warning the user when departing from the path of virtue which requires to stick to the internal database of pre-approved items.
Back in 2004, Germany saw a fundamental reform of the German Act on Registered Designs (“Geschmacksmustergesetz”): Before, Gebrauchsmusterschutz was defined as sort of a small coin of Copyright (“Kleine Münze des Urheberrechtes”). In particular, the old Act on Registered Designs made use of the concept of level of originality (“Gestaltungshöhe”) which is a characteristic of German Copyright (Urheberrecht). Thereafter, the new Geschmacksmustergesetz (only recently renamed in German as Gesetz über den rechtlichen Schutz von Designs because of even many German native speakers did no longer understand what really was meant in this context with the German word “Geschmack” which normally would translate to “taste”.) was a fresh start from scratch undertaken to fulfil the requirements of the Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs. Since this reform, German Geschmacksmusterrecht no longer was officially defined as small coin of Copyright. The the concept of level of originality disappeared from the law.
In the old times before the reform in 2004, creators of everyday’s works of so-called applied arts (“Angewandte Kunst”) were referred to the Gebrauchsmusterschutz whereas creators of purpose free arts (“Zweckfreie Kunst”) were in a position to gain protection by Copyright law more easily. In order to be eligible for Copyright protection, works of applied arts needed to show some higher level of originality than works of purpose free arts. This meant that the designs of many common household objects etc. were effectively copyright-free unless the design was registered as Geschmacksmuster. This does not mean that object designs generally were excluded from Copyright; it was just harder to obtain protection. For example, the design of the famous cantilever chair created by Mies van der Rohe et al. in all its elegance was found to be protected by Copyright in 1932 by German Reichsgericht.
But on November 13, 2013, the German Federal Supreme Court (Bundesgerichtshof, BGH) has clarified in Decision I ZR 143/12 (Press Release [in German]) that after entering into force of the reformed Geschmacksmustergesetz based on Directive 98/71/EC in 2004 there is no longer any room for a differentiation between works of applied arts, on the one hand, and works of purpose free arts, on the other hand, when it comes to the consideration of the required level of originality required for being eligible to Copyright protection.
In practice this means that, related to Germany, discussion of design infringement even in cases with common household objects etc. must no longer stop after evaluating registered Designs (formerly known as Geschmacksmuster). From now on, it is clear that Copyright should be considered also in small-coin cases.
As there is no such thing like a Copyright Register, it is hard to search for earlier rights. Theoretically, the creator of some new common household article etc. might feel safe if he or she is sure that the design in question indeed is a creation of his or her own. But in court, when being confronted with some earlier work looking confusingly similar, it might be hard to defend that the new design isn’t simply some derivative work of the old one. The field of common household articles might turn out to be quite crowded in the field of lower levels of originality.
(Foto: (C) 2010 by Tim Bartel aka avatar-1 via Flickr and, on 2013-11-14, licensed under the terms of a Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0) license.)
Now that François Hollande took office as the new President of France after his marginal victory in the French presidential elections this May, he will now introduce himself to official EU policy on his first Competitive Council meeting on May 31/June 1. The draft agenda for this meeting (cf. item 19), reading “Draft agreement on a Unified Patent Court and draft Statute – Political agreement“, electrifies observers of and parties involved the ongoing European patent legislation saga (see also press release, middle of page 5).
In recent months the upcoming French elections brought the negotiations on the Unified Patent Court Agreement to a complete standstill, as the dynamics between the French, British and German heads of govenment and the general political climate is a crucial factor in this legislative process, especially since the only serious and realistic candidates for the attractive seat of the new UPC Central Division are Paris, London, and Munich and it is frequently announced through official channels that this question is the only remaining open issue.
The EU Council expressed already in January this year its believe that a final agreement can be reached in June 2012 (see official statement) and it was the President of the European Council, Herman Van Rompuy, who clarified in a recent letter that he hopes (or expects) the remaining issues to be sorted out at next week’s Competitiveness meeting:
“[...] This deal is needed now, because this is an issue of crucial importance for innovation and growth. I very much hope that the last outstanding issue will be sorted out at the May Competitiveness Council. If not, I will take it up at the June European Council.”
But IP matters will not become easier in Europe with Mr Hollande, given his apparent openness to positions of critics of the current patent system. In fact, some of the answers (pdf) of Ms Fleur Pellerin (@fleurpellerin), responsible for the digital economy in Hollande’s campaign team, on a tendentious pre-election questionnaire of French anti software patent group “April” appear as if the socialist candidate for president (or his spokeswoman) was one of the ideological leaders of that pressure group:
The patentability of software would induce a partitioning of innovation that would be harmful to the ecosystem seen in its digital together. I am therefore opposed to the patenting of software.
Recently, the Federal Ministry of Justice under Sabine Leutheuser-Schnarrenberger (Liberal Democrats/FDP, @sls_bmj) submitted a proposal for amendments to patent law and other laws of intellectual property (cf Draft Amendment, in German) that were approved this week by the Federal Cabinet. To enter into force, the Amendment still needs to be approved by the Federal Parliament (“Bundestag”) which, however, is only a formality given the present clear parliamentary majority.
The amendments to the Patent Act (Patentgesetz, PatG) aim at reducing bureaucracy and providing for more flexible and cost-efficient proceedings before the German Patent and Trademark Office (DPMA/GPTO), cf. press release (machine translation).
One important measure to improve cost- and procedural efficiency at least for the Office was the introduction of the electronic case file system ElSA which enables the GPTO to process patent and utility model files fully electronically. The present Amendment regulates inter alia the – long overdue – public access to the electronic ElSA files in order to provide for some cost- and procedural benefits to applicants and attorneys as well.
As already indicated in my earlier post, one of the mainstream topics of discussions in Germany concerning IP politicts is the stunning rise of the German Piratenpartei (Pirate Party) at least if recent polls can be trusted. As of April 18, 2012, a poll covering the entire territory of Germany attributes to the Piratenpartei a 13% share of the votes. This is remarkable, indeed. According to the same poll, the Greens could expect a 12% share of the votes and, hence, the Piratenpartei might well be called third-strongest political party in Germany. However, we should not forget that such polls usually have a substantial error margin and, hence, the reality might also be that the Greens have 14% and the Piratenpartei merely 11% of the votes. In any case, at least at the time being, the Piratenpartei appear to be well avove 10% and, of course, well ahead of the 5% quorum required to get seats in general elections.
In view of this situation we can see an increasing level of nervousness – if not outright panickiness – amongst other political parties which are feverishly considering all available options of how to cope with this new political force. It is entirely open to what end this development will lead. Some parties, in particular the Greens, might be mulling to inch towards Pirate positions in order ro regain ground in circles of younger citizens while others surely will prefer to fight agsinst the very tendencies embodied by the Piratenpartei. In this context and speaking to an audience of IP specialists living abroad I would also like to point out that the current political discussion of the Piratenpartei can by no means be reduced to issues related to IP rights. There are other topics, for example in the fields of welfare politics or related to defending civil rights which are of great importance domestically.
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The Pirate Party (“Piratenpartei” in Germany) is well known amongst IP professionals for their sceptic stance on the current state of copyright and patent law. This article is just to keep our readers overseas without regular access to domestic news from Germany informed on recent developments:
- On September 18, 2011, the Piratenpartei won 9% of the votes and got their first parliamentary group in a local state Parliament in Germany; see my earlier posting here.
- On January 26, 2012, the Parliament (Landtag) of the German State of Saarland took a decision to dissolve after the Saarland Government, a so-called Jamaika-Coalition made up of Christian Democratic Union (CDU), Liberal Democratic Party (FDP), and the Greens (Bündnis90/Die Grünen), failed to carry on due to severe internal disputes. Yesterday, on March 25, 2012, the Piratenpartei won off the cuff a whopping share of 7.4% of the votes, well above the 5% quorum, giving them seats in the new legislative period. Remarkably, the parliamentary group of the Liberal Democrats was extinguished by a crushing defeat materialising in a share of meagre 1.25% of the votes.
- In the German State of Schleswig-Holstein, the Constitutional Court objected to certain provisions of the electoral law, demanding amendments to the law and, subsequently, dissolving of the Parliament (Landtag). A General Election is due to be held on May 06, 2012. Recent polls dated March 16, 2012, show results around 5% to be expected for the Piratenpartei. The quorum for gaining seats will be 5%.
- On March 14, 2012, the Parliament (Landtag) of the German State of North-Rhine-Westphalia dissolved after the Social Democrat (SPD) minority Government was defeated in a vote on the budget. A General Election is scheduled to be held on May 13, 2012. Recent polls also show results around 5% to be expected for the Piratenpartei.The quorum for gaining seats will be 5%.
- On January 20, 2013, General Elections will be held for the Parliament (Landtag) of the German State of Lower Saxony. Current polls attribute to the Piratenpartei a share of about 4%. The quorum for gaining seats will be 5%.
- In September 2013, General Elections for the lower chamber of German Parliament (Bundestag) fall due. Recent polls show results around 6% to 7% to be expected for the Piratenpartei. The quorum for gaining seats will be 5%.
Last not least in view of euphoric feelings after the Pirate Party’s success in Saarland, probably creating a thrust of motivation amongst their party activists, I would be somewhat surprised if they don’t also make it into the Parliaments of Schleswig-Holstein and North Rhine-Westphalia later this spring. And afterwards, if they manage to avoid any severe PR-disaster having a potential to turn their party into a laughing stock, it is also likely to see them in the Parliament of Lower Saxony as well as in the Bundestag in Berlin next year. As there are literally thousands of newcomer volunteers lining up at party conferences and looking for participation it might prove a bit difficult for the party to make sure that no lunatics or polit trolls seize the floor for performing a show of their own.
Anyway, pepole involved in IP politics better should assume that Piratenpartei is likely to stay.
(Photo: (C) 2012 CC-BY Piratenpartei @Fek)
The k/s/n/h::law blog
Some of the patent attorneys of the KSNH law firm have joined their efforts to research what is going on in the various branches of IP law and practice in order to keep themselves, their clients as well as interested circles of the public up to date. This blog is intended to present results of such efforts to a wider public.
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- kelle on Germany: Copyright Protection More Easily Available For Works Of “Applied Arts”
- Time Limits & Deadlines in Draft UPCA RoP: Counting The Days - KSNH Law - Intangible.Me on Wiki Edition of Agreement on Unified Patent Court Agreement (UPCA)
- Time Limits & Deadlines in Draft UPCA RoP: Counting The Days | ksnh::law on Wiki Edition of Agreement on Unified Patent Court Agreement (UPCA)
- Wiki Edition of Agreement on Unified Patent Cou... on Wiki Edition of Agreement on Unified Patent Court Agreement (UPCA)
- European Commission Takes Next Step Towards Legalising Software Patents in Europe | Techrights on EU Commission publishes Proposal of amendend Brussels I Regulation for ensuring Enforcement of UPC Judgements
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