(1) Rights provided for in section 38 cannot be exercised against a third party who, before the date of filing, has in good faith commenced use in Germany, or has made effective and serious preparations to that end, of an identical design which was developed independently of a registered design. The third party is entitled to use the design. The issuing of licences (section 31) is ruled out.
(2) The rights of the third party are not transferrable, except where the third party operates an enterprise and the transfer occurs along with that part of the enterprise in the course of which the act of use was done or the preparations were made.