The German Federal Supreme Court refers questions concerning the community design patent to the European Court of Justice

In a decision of June 2, 2016 (I ZR 226/14 „Kraftfahrzeugfelgen“) the German Federal Supreme Court had to deal with the limits of the repair privilege according to Article 110 of the Community Design Patent Regulation. The defendant had, by marketing aluminium rims, infringed several community design patents of the Porsche company. In its advertisement, the defendant indicated that the aluminium rims must only be used for repair purposes. Consequently, it was questionable whether the defendant could rely on the repair privilege in accordance with Article 110 of the Community Design Patent Regulation. The German Federal Supreme Court is of the opinion that this is not the case. However, there are deviating opinions of foreign courts in existence. The German Federal Supreme Court has referred a number of questions, which are decisive for the case, to the European Court of Justice. Essentially, the issues are whether the repair privilege is applicable to products – like rims for vehicles – which can be chosen freely by the customer, whether the products mandatorily have to be designed identically in order to match or to fit and how it can be guaranteed that the products are exclusively used for repair purposes.