InnoWebinar delved into the secrets of design rights — how to ensure that your product's design is not copied!
You have a new product for which you have designed a look that fits your brand and appeals to your customers. How do you make sure your design doesn't end up on other people's products? How do you keep the results of your work in your own hands and prevent your designs from being copied?
We delved into these questions and the secrets of design rights at the InnoWebinar, especially from the perspective of computer software interfaces and architecture. If you couldn't make it to the webinar, don't worry! In this blog post, we go through the main points.
We were introduced to the topic by Sini Petsalo, Associate Partner, IP Lawyer & Licensed Trial Counsel, Patent Attorney, European Trademark and Design Attorney at Kolster Ltd.
What is a design right?
Design right can be used to protect the appearance of a product or part of a product, which is expressed by its features or ornamentation, such as colors, shapes, texture or material. Design right always relates specifically to a product, i.e. to an industrially or handcrafted article. So, whether you want to protect the appearance of the product itself, or even its packaging, design right is a good way to go. However, it won’t help you if you want to protect nonproducts, such as concepts, processes, ideas or sound.
The pictures in the application for registration must be clear enough to show the design and its details. Only those features which are visible in the images can benefit from the protection conferred by the design right. The design may be shown in several angles and positions, provided that these positions do not require disassembly and reassembly of the design. Source: Finish Patent and Registration Office.
The purpose of design rights is to protect the results of your work and to prevent copying and misuse of the design. The owner of the design right has the exclusive right to use the design. The right belongs to the creator, even if the design was created in an employment relationship, unless otherwise agreed. The protection covers the manufacture, offering, putting on the market, importation, exportation, use and storage of the product for these purposes.
The length of protection of a design right is five years from the date of filing, after which it may be renewed up to four times. This gives a total protection period of 25 years.
What kind of design is eligible for protection?
In order to qualify for a design right, the appearance of the product must be permanent and reproducible in the same way over and over again. Furthermore, the design must be the result of the creative intellectual work of a human — not, for example, a form found in nature. However, artistic merit is not required for protection.
It is also important to clarify two more basic conditions for design protection. The design to be protected must be:
Novel, i.e. no similar design has been made available to the public before the date of filing of the application for registration.
Unique, i.e. informed user’s general impression of the design is different from the general impression they have of other previously published designs.
However, everything is relative, so what is actually novel and unique? A design must be substantially different from previously published designs in order to be considered novel. If the differences are only in non-essential details, the requirement of novelty is not met. Nor can a design which is new only in relation to a particular product, but which has been seen in other products before, be considered novel.
In order to meet the novelty requirement, it is worth remembering that no publication should be made before design protection has been granted. It is also not advisable to publish unfinished designs. However, there is some flexibility in the so-called grace period: a design can still be applied for design protection within 12 months of its publication. This didn’t help the manufacturer of Crocs shoes. They presented their new shoes at an exhibition and only applied for design protection after the 12-month grace period had already expired. So, they didn’t get the design right, which is why the shelves of shops are still full of “Crocs” from many different manufacturers.
In the context of the requirement for uniqueness, an informed user is a person who is able to perceive the differences between one model and another at a good level. Such a consumer must therefore come to the conclusion that the overall impression of the product is clearly different.
A part of the product may also be protected, but it must also meet the requirements of novelty and uniqueness. Furthermore, the part must be an integral part of the product, so that the product cannot be used without it. Examples of such parts are the side mirror of a car and the air filter of an engine.
Design protection for graphical user interfaces and architecture
Graphic user interface elements such as windows, icons, emojis, menus and pointers are a way of using a computer-controlled device. In a graphical user interface, a view, a single user interface element or, for example, an animation can be protected.
There is a growing need for design protection for user interfaces as smart devices become more and more common. It pays to get the design right, as the design of the user interface can be more important to the end user than the design of the smart device itself. The design of the product changes, but the interface elements often remain the same, as each manufacturer wants to accustom the end user to their particular interface. This increases the threshold for switching to a competitor's product and makes it easier to switch to the latest models from the same manufacturer.
Examples of Apple's protected graphical user interfaces.
Architectural work, such as technical drawings or interior design plans, are also subject to design rights in many ways. Indeed, many of the buildings we see in our environment are protected by design rights. However, it is worth bearing in mind that protection is always for what is visible in the images of the application, i.e. a drawing or sketch of a house, for example, does not represent the final house.
Summary
Design right is a good, effective and inexpensive protection of the appearance of a product, and suitable for protecting a wide range of products.
The design of a product can be copied before protection, so it is always worth protecting the design before publication. Unfinished designs should not be published.
To qualify for protection, a design must be: 1. Novel 2. Unique.
Consider when protecting a design: should the whole product or parts of it be protected? Is the design protected by other protection methods? Is more than one application for protection needed? When should the product be published? Geographical scope of protection? How will the product be presented in the application?
For design rights of a product, you should contact an expert who will recommend the appropriate way forward.
Check out also the copyright training on 24.4.2024 and register!