Product Design Protection - Industrial Designs

Have you created an original design/appearance for a product and would like to protect it from being copied?

One option is protection as an industrial design.

Industrial design means the appearance of a product resulting, in particular, from its lines, contours, colors, shape, texture, materials or ornamentation. It is a visually perceptible property of the product, not, for example, its technical or structural nature. The product is an industrially produced or handcrafted three-dimensional or two-dimensional object. An industrial design is eligible for protection if it is new and has individual character.

The product design can thus be registered as an industrial design. Alternatively, if it is not registered, it is protected in the European Union for the first three years after its disclosure in the European Union as an unregistered design.

Registering an industrial design gives its owner the exclusive right to use the industrial design, to prevent third parties from using it without their consent, to give consent to use of the industrial design to other persons, or to transfer the right to the industrial design. Use of an industrial design means, in particular, the manufacture, offering, placing on the market, import, export, or use of a product in which that industrial design is embodied or to which it is applied, or the storage of such a product for those purposes. The industrial design is registered for five years, with the possibility of five-year extensions up to a total of 25 years of protection.

Industrial designs, such as trademarks, are also registered for specific product categories under the Locarno Agreement establishing the International Classification for Industrial Designs. However, this classification is of an administrative nature only and does not affect the scope of protection.

As regards the scope of design protection, the degree of distinction from a registered design is important in specific cases. Industrial designs are considered to be identical if they differ only insignificantly when your design does not give the informed user a different overall impression. According to case law, an informed user is a user who shows not only average attention but also special vigilance, whether due to their personal experience or extensive knowledge of the sector, and although not a designer or technical expert, knows the various designs existing in the sector, has some degree of knowledge of the elements which those designs usually contain and, as a result of their interest in the products in question, shows a relatively high degree of attention in their use. An informed user will be, for example, a person who has been in the industry for a long time and is able to notice certain differences.

If infringement of the design right has caused damage, the design owner is entitled to compensation. If it has caused non-pecuniary harm, the owner is entitled to appropriate satisfaction, which may include a monetary payment. The owner is also entitled to restitution of unjust enrichment obtained by the infringer as a result of threatening or infringing the right. The owner may also ask the court to order the person threatening or infringing the right to destroy products whose manufacture or placing on the market has threatened or infringed it.

Have you created an industrial design and would you like to protect it and reap the benefits of design registration? Contact us to arrange initial consultation, and our experts will advise you with a comprehensive solution for protecting your intellectual property.