The “Birthday Train” case – strengthening of copyrighted design protection in Germany


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With the “Birthday Train” judgement, the German Federal Court of Justice (BGH) distanced itself from the so called “Stufentheorie” applied for many decades and expanded the range of product designs that can be protected by copyright.

With the landmark “Birthday Train” judgement of 13 November 2013 (file number I ZR 143/12), the Federal Court of Justice (BGH) changed its practice of judging the eligibility of product designs or works of applied art for copyright protection. It turned its back on the “Stufentheorie” applied for many decades, under which commercial works of applied art had to meet extremely high requirements for protection, and ended the across-the-board unequal treatment of works of applied art compared to the pure visual arts and literary and musical works of art. According to the BGH it should be sufficient for product designs to reach a threshold of originality that can be justifiably described as “artistic” by people who appreciate art and are reasonably conversant with the conceptions of art. Such designs therefore no longer have to show a significantly higher degree of originality than the average product design.

With this argument the BGH reversed the decisions still based on current practice of the lower courts who refused copyright protection for the wooden toy train shown below, and remanded the case for reconsideration to the appellate court, where it is still pending.


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