Advantages of Design Registration

What is a design patent or design?

A design patent protects the external appearance of products, i.e. the color and shape design of all utility objects, provided that they have a specific external design that allows them to be repeated. In many countries, a design patent is also called a registered design.

What can be protected?

First of all, there must be an industrially or manually producible product which is new and has a certain individual character. This peculiarity is given if the overall impression of the design stands out from the known set of forms. A combination of already known design elements is sufficient for this.

A design is new if the design elements which constitute its individual character are not previously known to the specialist circles of the community. Here, too, there is a grace period which is twice as long as that for utility models, i.e. twelve months.

Design protection is excluded for products whose design is exclusively determined by their technical function, for spare parts and accessories which are only intended to serve as connecting pieces (so-called "must-fit parts"), in the case of serious infringements of public safety and order, and where there is misuse of signs in the public interest.

What are the advantages of a registered design?

By registering the design, you obtain a kind of monopoly right with which you can prohibit others from manufacturing or selling products with your design. Therefore, if a third party uses your design without your permission, you can in particular demand injunctive relief and damages.

In addition, a registered design also has economic advantages. It can be marketed by licensing or selling it to a third party. It also has a high marketing value, which you can use in advertising ("protected design").

When should you register a design?

As a rule of thumb: The earlier, the better! In design law, the so-called priority principle applies, i.e. a younger design prevails over an older design. Since priority is generally determined by the filing date, it makes sense to register a design as soon as possible. Once the design has been entered in the register, you can then enforce your claims (injunction, damages, etc.) against all designs whose priority date is after the filing date of your design.

Where does the application take place?

The application for a design is filed at the DPMA, or the trademark office responsible in the respective country. There, only a limited examination takes place. The offices only examine the formalities of the application, but not whether the design is new.

Initially, the designer or his legal successor is exclusively entitled to the right of registration and use. In addition to a written application for registration (with exact designation of the applicant), the application must contain a representation of the design suitable for publication. Photographic and other graphic representations of the design are admissible. It is no longer possible to file the original. If the publication of the design is postponed, an areal sample section (e.g. wallpaper, tablecloths, etc.) may be deposited. For cost reasons, up to 100 designs can also be combined in a collective application.

How long is the term of protection?

The protection of the design begins with the entry in the register. For the scope of protection, the same applies as for the utility model. Foreign applications must be taken into account when claiming priority. Design protection lasts for five years from the date of application. An extension for a further five years is possible up to a maximum term of 25 years. After that, the design can be copied by anyone.

 

Liesegang & Partner mbB, Rechtsanwälte