The repair clause: Design without protection?

For years, the German automotive industry has been arguing with consumer protection groups and associations about design protection for spare parts. Now the Federal Minister of Justice, Katarina Barley, has taken up the topic and, according to the latest information from the FAZ, wants to make serious changes.

The Federal Ministry of Justice plans to abolish design protection for visible spare parts if they are used for repair purposes. This is the result of a draft law that is currently being voted on by the ministries. A so-called repair clause is to be included in the DesignG: If the car has to go to the garage, it quickly becomes expensive for the owner – you have to dig deep into your pockets for spare parts. According to the BMJ, the reason for this seems to be the lack of competition on the spare parts market, which is also influenced by design protection. Design protection refers to the external appearance of a product. An exclusive right to design, colour and form. Anyone who has registered this IP-right may prohibit other manufacturers from using the same design for up to 25 years. Original parts often cost significantly more than spare parts from independent dealers and companies. If the Minister’s plans are implemented, there will be no protection for fenders or headlights, for example. This would entitle not only original equipment manufacturers to produce these spare parts but also other companies.

The German automotive industry has been warning against the abolition of design protection for years. We consider this warning to be justified and important.

Basically, it is like this: exclusive rights like design protection rights are – just like patents – a decisive incentive for the development of new products. So far, the costs that companies invest in research and development have paid off. Reason for this: Manufacturers can prohibit other companies from using the new design, for example. If this monopoly expires, the incentive also decreases. In addition, our experience shows that protected designs are economically decisive for many companies, especially when it comes to visually differentiating themselves from their competitors. It is also obvious that when things become cheaper, quality often deteriorates as well.

In addition to quality, one of the main arguments against the introduction of a repair clause is safety: efforts to take actions against cheap copies from China will become more difficult if design protection is dropped. Quickly important spare parts are then cheaper scrap. The Association of the Automotive Industry expresses further safety concerns to the FAZ. For example, airbags or impact protection are often programmed to the crash behaviour of original metal sheets. In addition to the protection of the individual driver, the safety of uninvolved road users is also at stake.

A few years ago, a repair clause was already being discussed at EU level. However, the Commission withdrew this proposal in 2014. We are interested to see whether such a clause will prevail this time, despite all the counter-arguments.

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