Protect the design of your product

Design concerns the appearance of a product or part of a product, for example a new design for headphones, a watch, a coffee maker, clothing or a bag, etc. Each product can differ in terms of its lines, contours, colours, shape, texture, materials or decoration.

A 2D view of a product is referred to as a drawing; a 3D view of a product is referred to as a design. For convenience we will use the term ‘design’, but know that it also refers to drawings.

There are two good reasons to protect a design:

• to establish ownership on your design;

By registering your design, you make it clear that you are the rightful owner. As a result you can take action against competitors who copy it and use your design commercially.

• to make your design into an asset with financial value;

A registered design can be sold or licensed.

The design of your product can only be protected if it is new and has its own individual character.

• ‘New’ means that your design may not already be known publicly on the date you apply to register your design. Thus it may not already be published on a website, in an advertising leaflet, be shown at an exhibition, or be known through its sale, for example.
• ‘Individual character’ means that your design must not resemble a design that is already known. In other words you do not have a sense of ‘déjà vu’ when seeing the design.

In the Benelux you can protect your design by registering it with the Benelux Office for Intellectual Property (BOIP). Thinking bigger? You can also opt for protection in the whole of the EU or beyond.

Before applying to register your design, carefully check that it is new and has its own individual character, to make sure that your design is valid. The registering authority will not check this for you. You can check this yourself through a search in the relevant databases (in the Benelux, the EU and internationally). However as not all designs are registered you should also check magazines, catalogues of exhibitions, internet, etc. Need assistance? Then consult a specialised professional advisor near you via the Benelux association for trademark and design law.

Bear in mind that disclosing your design yourself can also destroy its novelty or individual character, for example by exhibiting or marketing your design before you have registered it. However, as an exception, you as the creator are allowed twelve months to apply to register your design after making it available to the public.

• Check whether your design is new and has individual character. (See step 3 for more information on these requirements)
• Choose where you want to protect your design (in the Benelux, in the EU or internationally).
• Your application must meet a number of formal requirements to be accepted:

1. Use images that clearly show the individual character of your design. This is what ultimately determines the protection of your design. You must send at least one image with your application. This must be a general, front, or perspective view. We recommend submitting images showing the design from various angles, such as the top or the side view.

2. Provide a clear description of the product to which the design applies or will apply, preferably using the wording given in the International Locarno Classification (this is an international classification used for the purposes of the registration of designs). You can use the application’s search function to find the best suited classification.

3. State the name of who is applying for the design: you or your company.

4. The design must not be contrary to public order or good morals.

The fee for registering one design for five years starts from EUR 150 for the Benelux and EUR 350 for the EU. Do you want to protect your design outside Europe? Check the calculator to find out more about fees.

A design registration remains valid for five years from the date on which you filed for protection. The registration can be extended by five-year periods, up to a maximum of 25 years. A fee is charged to renew your design registration.

The design of your product can also be protected as an unregistered Community design. This applies within the whole of the EU for a period of three years, starting from the date when you first made your design available to the public in the EU. And the good news is no registration is needed. Protection applies automatically when you make your design available to the public.

An unregistered Community design gives you the right to prohibit others from using your design. However, this applies only if that design is an intentional copy of your design, in other words, the copy is made even though the existence of your earlier design is known by the copier. Unregistered Community designs are often used in the fashion industry.

In some cases, the appearance of a product can also be protected by copyright if the product is original and features the personal mark of its creator. Find out more about copyright protection by clicking here.

If someone uses your design without your permission, you can accuse them of infringement. In order to take action against this infringement you can first try to contact the other party and request that it stops using the conflicting design. If this does not help, you can go to court to enforce your design rights against the infringer.

If you discover a design infringement, the best course of action is to seek advice from a specialised legal professional, for example via the Benelux association for trademark and design law.

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