Design protection
Registered designs protect products in their two- or three-dimensional appearance.
A design (Europe: "Community design", USA: "Design patent") can protect products and objects in their entirety as well as individual design elements (e.g. packaging, logo, symbol, font).
Prerequisites for protection
The application requirements for a European design are the novelty requirement and the individual character requirement. Novelty exists if there is no identical design with only minor changes to the details. Individual character exists if the design creates a different overall impression than an existing product.
A US design patent can be obtained for any new, unique and ornamental design of an article of manufacture. The prerequisite for registration is that the design of the object must have a level of creativity. This is the case if a certain creative achievement is recognizable that goes beyond the ordinary.
Auditing the offices
The European Union Intellectual Property Office (EUIPO) only carries out a formal examination; the substantive requirements for protection (novelty and individual character) are not examined. Applicants are therefore recommended to carry out a preliminary search for competing or conflicting design applications or have one carried out (see also: Trademark search before applying for a trademark).
Publication usually takes place shortly after approval by the office. It should be noted here that the publication, which usually takes place promptly, means that the confidentiality of a product that has not yet been launched is no longer guaranteed.
Other in the USA:
The United States Patent and Trademark Office (USPTO) conducts a substantive examination. Unlike in Europe, the "design patent" is examined for novelty by the patent office. There are also stricter drawing requirements than at the EUIPO.
The application procedure takes between 12 and 18 months. With the application, the design can be marked as "Patent Pending"; however, it has no protective effect until publication, which accompanies the grant.
Grace period
Both the Community design and the design patent are subject to a grace period of 12 months. This means that the design can still be legally protected during this period after public disclosure (e.g. in a printed publication, on a website or through public use).
Protection period
The term of protection of a European design is initially 5 years from the date of filing with the EUIPO. It can be maintained after 5 years - and up to a maximum of 25 years - by paying renewal fees.
A US design has a term of 14 years from the date of grant at the USPTO. No renewal fees are payable.
International design protection under the Hague Agreement
EU and US designs can also be obtained internationally.
The international Hague Design Agreement (HMA) offers the possibility of registering a design in several countries - including countries such as the USA and Japan in addition to the EU states - by means of a standardized procedure. Further information: International design protection: The Hague Agreement.
Compared to patent protection, design protection can be obtained relatively quickly and at a manageable cost. Please contact us for an initial consultation, e.g. to review the options against the background of your company's IP strategy.
Further information
International design protection
Regarding Justus Kreuels:
Justus Kreuels, German and European Patent Attorney, studied mechanical engineering at the TU Munich and the RWTH Aachen. A main focus of his practice is the enforcement of intellectual property rights in the field of mobile communication, Internet of Things (IoT), robotics, etc. in Germany.