Design sells - have you protected your competitive edge? With design rights you can protect your product or its design, thus ensuring exclusive rights to your design for a predetermined period of time or within a specific country or region. The object must be basically unpublished and sufficiently differentiatable from previously known designs.
The protection is based on drawings or photographs describing the appearance of a given product. Design rights involve a large number of detailed and country-specific regulations, which require expertise.
Design rights provide effective protection against unauthorised imitations on the market. A design right ensures that your customer purchases the right and original product - your product.
A product may be protected by a design right, patent or utility model. Design rights may also be used for protecting the appearance of products which comprehend essentially known technical solutions which cannot consequently be patented or protected with a utility model.
In some countries it is also possible to apply a national or regional novelty, which means that the design must be new to the country or region in which the design right is being sought.
However, the novelty and individual character of a design is not a requirement for entry in the register of designs in all countries or systems. In many national offices and OHIM only an informal examination is conducted, i.e. simply registration. This lack of examination may lead to a situation in which a design's novelty and individual character must be verifiable in some manner, at least in cases of infringement.
According to the Finnish Registered Design Act and Community Designs Regulation, software cannot be protected by a design right. However, icons and menu designs used in software can be protected.
Attributes of a design which are solely determined according to the technical intended use of the product are not eligible for protection. One reason for this is that a design right protects the outward appearance of an object and technical attributes can be protected by patents and/or registration of a utility model.
The visibility requirement for a "complex product" also restricts what is included within the scope of protection. A complex product consists of several components, which can be replaced in such a manner that it is possible to disassemble and reassemble the product. According to the visibility requirement, only those attributes that are visible during the normal use of the product are eligible for protection. Connecting parts of a complex product are not eligible for protection. When connecting parts and concealed attributes are "deducted" from the design being protected, the remaining design must fulfil the set requirements, i.e. it must be new and unique.
A complex product is, for example, a car and a complex product component is, for example, a car bumper. An exception to the complex product is a so-called modular system, which comprehends connecting parts that allow interchangeable products to be assembled and connected in a variety of ways to form a modular system. The connecting parts for this type of system are eligible for protection. This is also known as the Lego Rule.
Within the EU and in some other countries it is possible to obtain unregistered design right protection. In the EU an unregistered design right is protected at the moment of publication and remains protected for a period of three years. There is no need to file an application for registration. An unregistered Community Design (UCD) offers indivisible protection, which begins and ends at the same time in all EU member states. In an unregistered Community Design the published product itself forms the scope of protection, which is usually less comprehensive than the scope of protection for a registered design right.
Design rights require an application for registration. In a design right, registered images form the scope of protection. Upon filing a registration application you will be assigned a date of application. It is easier and more effective to use this as a proof in, for example, disputes than a self-documented date of publication.
Even though an unregistered design right is in a sense free, because no application is filed, it should be noted that proving infringement upon an unregistered design right may turn out to be far more costly than proving infringement upon a registered design right. You must be able to prove that the infringing party had prior knowledge of your design and used this knowledge to create their own product.
The period of protection offered for a registered design right is also considerably longer (up to 25 years), than the period of protection for an unregistered design right (only 3 years). A registration application also entitles the holder to claim priority, when protection is being sought, for example, in countries outside the EU.
By claiming priority on the first design right application, which is filed for later design right applications, you will be given the advantage of having the later design right application listed as being filed on the date of the first application.
For a design right application filed later it is possible to claim priority of an earlier design right application, by which protection for the design was sought for the first time, provided that the following conditions are met:
In certain countries, such as Finland, design right legislation includes a regulation stipulating a 12 month grace period. The Community Design regulation also contains a 12 month grace period.
Grace period means that any measures taken by the design creator or design proprietor to publish a design within a period of 12 months before filing an application pose no obstacle to registration of a novelty. Because not all countries offer a grace period in legislation, we recommend that an application be filed before publishing a design. Otherwise, any measures taken to publish a design may pose an obstacle to approval of an application in countries where protection is being sought and whose design right legislation does not include a grace period.
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