As recently reported, the German Federal Supreme Court had decided that the stretch-version of Daimler’s famous S Class manufactured by a non-authorized German car tuner would amount to infringing Daimler’s registered Community design of the very same stretched version of the S Class (W 221).It is also worth taking a minute to look into the decision of the lower instance heard at the Stuttgart Appeal Court. As the defendant introduced prior art by way of Daimler’s registered Community design of the stretched version of the predecessor S Class version (W 220), the Court tested validity of the design-in-suit against W 220 but found the overall impression of this version to be “clearly different”. In this respect, the Appeal Court said, one must take into consideration that due to “market interests”, the claimant’s “possibilities in developing the asserted design” were limited. The court reached this conclusion as it considered that on the one hand, people would expect the new W 221 type to stand for a “modernization of the form of appearance” but, on the other hand, the “characteristic appearance would be “preserved (as usual in case of branded cars)”.
Can commercial interests and consumer expectations be eligible limits to the freedom of the designer in developing his design under Article 6 (2) CDR? Unfortunately, the German Supreme Court does not provide an answer to this question since the defendant, much to our surprise, refrained from asserting that particular piece of prior art in the appeal proceedings. What a missed opportunity …
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