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German model law incorporates controversial repair clause

Design protection for visible replacement parts is regulated differently in the EU. Some countries exclude these parts from design protection for repair purposes (the so-called repair clause), thus limiting the design protection rights of car manufacturers.
The intention had long been to create a uniform regulation throughout the EU. Germany, the most embittered opponent of a repair clause, has now changed its legislation, ending design protection for some replacement parts for German car brands.

The issue of the repair clause has been the subject of controversial debate for over 15 years. Car manufacturers can obtain design protection for parts that are visible and integrated into the body of the vehicle, such as hoods, bumpers, fenders, side mirrors, doors, headlights and taillights. Design protection gives the holder – i.e. the car manufacturer – the exclusive right to production and use and thus grants it a monopoly-like position. Reproductions for the purpose of repair may only be distributed with the permission of the holder of the design protection right. In practice, this has direct implications for the automotive aftermarket. In 2018, for example, 45 million German car owners spent more than 12 billion euros on spare and replacement parts for cars.

Applicable to a specific type of spare parts

After long and arduous political discussions, Germany included a repair clause in its model legislation effective December 2020. It applies to replacement parts whose appearance is determined by the shape of the original (for example, bumpers, hoods, fenders, wing mirrors, windows, headlights and taillights) and for which the consumer does not accept a different shape. Rims and other freely interchangeable accessories are not covered by the German repair clause. Design protection is not limited for these parts. Since this exception is contrary to the established case law of the European and German Supreme Courts, the repair clause is likely to be applied to these parts as well.

Regulations for manufacturers

The repair clause seems to be good news for the spare parts manufacturers market. In addition, it can be more economical for the consumer. However, there are some requirements that manufacturers must meet. They must clearly and visibly indicate on the spare part, its packaging or in catalogs that the part is for repair only and that it is not from the original car manufacturer. Despite protests from replacement part manufacturers, the German repair clause only applies to models registered as of the date of introduction of the repair clause, which is December 2, 2020. Design protection is granted for a period of up to 25 years. Therefore, a liberalization of the market will not take place before 2045 and until then, holders of existing protected designs can benefit from their right without limitation.

Effects on design and patent portfolio

Under the new repair clause, holders of a design right for original replacement parts enjoy effectively the same protection as before. Only in a recovery situation is the enforcement of the protection right restricted. It is therefore advisable for holders of a design right, for whom this may be of interest, to consider whether the repair clause may affect their design and patent portfolios. Our experts are happy to advise you on this. For more information, please contact Maaike Witteman or Claudia Meindel.

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Portretfoto van Claudia Meindel

Claudia Meindel

  • Attorney-at-Law
  • Senior Associate
Portretfoto van Maaike Witteman

Maaike Witteman

  • European and Benelux Trademark and Design Attorney
  • Senior Associate

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