Chinese VW-Käfer causes uproar - design theft?

A Chinese VW-Käfer from the Ora company is currently causing a stir. A new car model by the Chinese manufacturer Ora called “Ballet Cat” looks almost exactly like the legendary VW-Käfer. Is Ora allowed to do that? Or is it design theft and plagiarism? And what rights apply in China?

The VW-Käfer is still one of the most built cars in the world. Moreover, it is virtually a cult and also arouses enthusiasm internationally. However, you hardly see any orginal VW-Käfer on the roads any more, because VW naturally moved with the times and continued to develop its bestseller – the VW Golf was even sold more often than the VW-Käfer.

Now, however, a Chinese VW-Käfer is causing a stir. A new car model by the Chinese manufacturer Ora called “Ballet Cat” looks almost exactly like a VW-Käfer. Is Ora allowed to do that? Or is the Chinese VW-Käfer a design theft?

Chinese VW-Käfer

To do this, one must first look at which IP rights VW is actually successfully asserting in China on the famous VW-Käfer design. Design rights, rights from a utility model or also copyrights come into question here – and with regard to the latter, there has already been a much-noticed judgement before a German court in 2019.

2019: Copyright of the VW-Käfer in German court

The daughter and heiress of a VW designer Erwin Komenda had sued for copyright compensation for the modern VW Beetle. VW defended itself and argued that the original VW-Käfer was not protected by copyright because its design had been technically determined.

The plaintiff claimed that her father’s design was still used today in the VW Beetle.

In the end, however, her action against VW was in vain (copyright infringement VW Beetle, ref. 9 O 3006/17). The Regional Court of Braunschweig, which dealt with this case, reviewed whether the VW Beetle built from 2014 onwards constituted an adaptation (§ 23 UrhG) or a free use (§ 24 UrhG) of the models dating from the 1930s. However, the court found significant differences in the design and did not see any conformity in the overall impression.

Could the plaintiff now also claim copyright in China? In principle, yes, copyrights are also enshrined in Chinese law. However, they only have a term of 50 years, not 70 years after the death of the author as in German copyright law (§ 64 UrhG). The design of the legendary VW-Käfer was drawn in the 1930s; and the designer and author died in August 1966. In the case of the Ora car model, these copyrights no longer apply in China anyway.

Chinese design theft? Too simplistic

In the question of design theft from China, it must also be taken into account that most Western carmakers have entered into joint ventures with Chinese companies. The car manufacturer Ora, for example, is a joint venture partner of BMW.

Nor is Ora’s car model the first to be modelled on the legendary VW Beetle. At the Shanghai Auto Show in April 2021, the electric car brand Euler under Great Wall Motors had already presented a car model called “Punk Cat” that looks similar like a Volkswagen Käfer.

After this show, VW was also asked directly by journalists how VW would deal with this. VW announced that they would check whether the car model “Punkt Katze” infringed VW’s utility model or design rights; they reserved the right to take necessary measures.

But instead of VW, Great Wall Motors became active in this matter. The Chinese filed two applications for registration of Community designs (RCDs) in relation to the design of their car model on 3 June 2021, and these were also already confirmed on 11 June (No. 008562102-0002). Priority to these design registrations was claimed from the Chinese design protection (No. 202130179603.3) dated 31 March 2021. And so far, according to the EUIPO’s data inspection, there have been no complaints against these design registrations – although they have certainly not escaped VW’s attention.

Chinese VW Beetle – unfair competition?

In principle, a violation of unfair competition can also be asserted in the case of unfair business practices; this right can also be invoked under European law as well as under Chinese law.

But legal action for unfair competition first requires that there is actually an infringement of IP rights. The Chinese interpretation of the Unfair Competition Law emphasises that a party can only rely on Article 2 of this law if it can also prove that an act harmful to the company’s interests disturbs the order of market competition, However, this can only be the case if VW asserts older IP rights to the VW Beetle.

Conclusion

Design rights and copyrights are not to be confused with trademark rights: Trademark rights could, in principle, be maintained indefinitely, because the claim to protection can be renewed as often as desired. Protection can also be claimed as a trade mark that has come into existence not through a trade mark application but through general use and awareness of a trade mark. However, a design – such as a car model or a famous shoe brand – is not so easy to protect as a trade mark, as major judgements on shape marks show.

In contrast, neither design rights nor copyrights have an infinite term. European design rights have a maximum term of 25 years, and copyrights also end, in Germany 70 years after the death of the author.

Would you also like to protect or defend a design?

Our attorneys have many years of expertise in design law and patent law as well as in the entire field of intellectual property and are authorised to represent you before any court – in Germany and also internationally. In addition, our team also has country and language knowledge of China – and of course of Chinese IP law.

Please do not hesitate to contact us if you are interested.