Design Rights

Design right is a right that is limited to a certain time and geographical area, and it provides its holder the right to deny others from using a specific design, such as a specifically-shaped product, in their business activities. The exploitation of a design includes for instance the manufacturing, offering, putting on the market, using, importing, exporting or storing of the products of that design.

Design right protects expressly the appearance of the product; technical ideas can be protected through patents and/or utility models. The appearance of the design consists of the overall effect created by its shape, form, colour, surface structure and other features. The object of the protection is always a concrete article or its part (for instance a car, chair, neck of a bottle).

The same product may, however, be protected by both design right and a patent and/or a registered utility model, since these different forms of protection are not exclusive of each other. Furthermore, design protection may also be obtained for the design of such products that comprise technical solutions which are already known as such and for which patent or utility model protection may therefore not be applied for.

Registered and unregistered design rights

There are two kinds of design rights: registered design rights and unregistered design rights. In order to obtain a registered design right, a registration application shall always be filed with the registering authority, usually the patent office.

Unregistered design right is automatically created when the design is made public. In this context, one should take into account that in some countries of the world the law does not provide for unregistered design rights, but only registered design rights. Making a design public before the filing date of the registration application might mean that the possibility for obtaining a valid registered design right is lost in some countries, in which the law does not provide for unregistered design rights. In infringement cases, it is also much more difficult to refer to an unregistered design than to registered design.

Alternatives for design rights

In addition to a design right, the appearance of a product may be protected by a three-dimensional trade mark.

In some cases copyright may also provide protection for the design of the product. However, in order for the product to be protected by copyright the design shall fulfill the so-called originality requirement.