Pieces of a Ferrari

09 November 2021

A Ferrari is quite visible, one could argue. Even lawyers would have a hard time questioning the distinctiveness of the appearance of an average Ferrari (if there is such a thing as an average Ferrari).

What lawyers do like to question, however, is the visibility and the distinctiveness of the individual components, the spare parts, of a Ferrari. Or any other car. Because spare parts are money. Spare parts to replace broken or damaged original car parts, but also spare parts that elevate your, let’s say, ordinary Ferrari 488 GTB to the spectacular Ferrari FXX K, a limited edition and intended exclusively for driving on track. Those spare parts are not just meant to replace originals, but to change the whole appearance of a car. And that, according to Ferrari, constitutes an infringement of their Community design rights. Their unregistered Community design rights, to be precise.

Unregistered design rights

In short, design law protects the two- or three-dimensional appearance of a product. That can be anything, a coffee machine, fabric and wallpaper design, a bicycle, a chair, or a Ferrari FXX K.

A design can be entered in a national or international Design Register. It is then protected for 25 years. However, and this is even less well known, a non-registered design, if it is new and has individual character, is also automatically protected as a design in the EU. Free and without any formalities. This so-called unregistered Community design is protected against counterfeiting for (only) three years.

From 488 GTB to FXX K

In a case that recently reached the European Court of Justice, Ferrari summoned German independent spare part manufacturer Mansory Design to stop selling ‘tuning kits’ designed to alter, to pimp, the appearance of a Ferrari 488 GTB in such a way as to make it resemble the appearance of the Ferrari FXX K.

Mansory’s reply tapped into an ongoing discussion about design rights in the automotive industry. Does a design right, in this case an unregistered design right, only protect the overall look of a car or are certain individual parts of that car also individually protected? A German court wasn’t so sure about the answer and referred the case to the European Court of Justice (ECJ).

Protected parts

The ECJ ruled that Ferrari was right in saying that a component part can be protected as a Community design, but only when it is clearly visible and defined by particular lines, contours, colours, shapes and texture. “That presupposes that the appearance of that part of the product or that component part of a complex product is capable, in itself, of producing an overall impression and cannot be completely lost in the product as a whole.”

After this theoretical answer of the ECJ, the German court now has to rule on the facts in this case, but there is likely no doubt that, for example, the characteristic V-shaped element on the bonnet of the Ferrari FFX K, is clearly visible. After all, excellent visibility was precisely the aim of the tuning kits. Otherwise, your car would still look like a boring Ferrari 488 GTB after all…

Car pimpers beware…

 

Ferrari beeld bij tekst-Recovered.2

 

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