In 2014 Ferrari presented its top-of-the-line FXX K model to the public. A photo accompanying the press release showed a front view with the typical "V" shaped element on the hood: 

Mansory soon after made a V-shaped "tuning kit" or "front kit" that made a just slightly less exclusive Ferrari look very much like a real FXX K. Ferrari had forgotten to apply for a registered community design (RCD) for the car and the V-shaped element as part of it. Therefore, Ferrari claimed in the German courts an infringement of an unregistered community design (UCD) consisting of the 'V' shaped element of its 'FXX-K' car model and the front spoiler underneath (image below). After all, a component of a product can also be protected as a design.

A condition for the creation of an UCD is that it has been made available to the public. Must such a partial model then have been made public separately, in that specific form? The Court of Justice ruled in 2021 that this is not necessary; the publication of the car as a whole is sufficient. However, the appearance of the part or component part must be clearly recognizable when it is made available. The part or component part in question must constitute a visible section of the product or complex product, clearly defined by particular lines, contours, colours, shapes or texture.

This is where things break down for Ferrari before the Oberlandesgericht Düsseldorf. The partial model invoked by Ferrari is not clearly defined. While the V-shape in two colors is delineated by a silver line and the windshield, it also extends to the front spoiler ("philtrum"). That front spoiler, according to Ferrari, is also part of the invoked part-design despite its different shape. The Oberlandesgericht holds that altogether this is not clearly defined. Hence, this is not a valid unregistered community design. Mansory does not have to stop selling this tuning kit.

Timely applying for a Registered Community Design can offer great advantages after all. 

Maarten Haak

28 June 2023