Articles


What?

The protection of (registered) designs is a key element in a number of industries, such as fashion, furniture, product development, but also high technology.

A design protects the appearance of a product: its shape, patterns and colours. From a legal perspective, a “design” may consist of the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation.

How?

In principle, one can obtain design protection by obtaining a registration for the design with a competent intellectual property offices in those countries or regions where such protection is available. In the EU, also “unregistered” designs are protected, provided they meet the conditions for protection; however, the term for protection is limited to three years.

Unregistered Designs

Even if no design registration is obtained, the EU provides for a protection – albeit limited to three years – for so-called “unregistered designs”. If you would like to invoke such an unregistered design in court against a third party infringer, the following elements need to be proven:

  1. proof of the date and place of the first disclosure of the design;
  2. proof that the design refers to the disclosed design (with its main characteristic features and especially ones with ‘individual character’);
  3. proof that the interested circles within the European Union could have been aware of the disclosure itself. The difficulty of proving the date and scope of disclosure should not be underestimated. It is inherent in the UCD system, which is otherwise an easy form of protection to achieve;
  4. proof that the alleged counterfeiter has in fact copied the protected design.