Design and Design Rights

Designs are concerned with the appearance in whole or in part of an article. The design of an article may include, shape, contours, texture, colour and ornamentation, but excludes those elements whose appearance is determined by their function. Protection of the shape/appearance of an article may be an important part of a commercial strategy, particularly with consumer oriented products such as medical devices, medications and packaging, and may serve as a useful further blocking strategy to limit competition in the market.

Many countries have design protection laws, and broadly there are two forms of protection available: Registered and unregistered.

• A Registered design is a monopoly right to use a design. In the EU the monopoly lasts for an initial period of five years and may be extended in five-year terms up to a maximum of 25 years.  Like patents, registered designs are territorial in nature and it will be necessary to devise and implement an appropriate foreign filing strategy. Foreign filings must be made within six months of the original national filing, but in many cases a Registered Community Design application (EU) filing may be an appropriate first stage.
• Unregistered design right (called simply Design Right in the UK) is created at the time an article is made or drawn which has an appearance that is not substantially the same as an earlier design. The owner of the design has rights to prevent copying, importing or sale, over a term which varies depending on the country or area. In the UK, it confers a maximum period of protection of ten years from the first marketing of an article made to a design subject to an overall limit of 15 years from the creation of the design.

Similar protection is available in other countries outside the European Union but the level of protection, availability and the term varies. It is highly advisable to seek early professional advice on protecting the design of your product to maximise this cost effective and efficient form of intellectual property right.