Design protection in Europe is an efficient tool to fight product piracy. Registered designs can not only be enforced in normal court proceedings but are also effective before custom authorities and before platforms like Amazon® and eBay®. Although design do not undergo a substantial examination, the legal validity is presumed, and preliminary injunctions can often be obtained easier and faster than for a patent. Further design protection is relatively inexpensive, as bulk applications are possible, currently for an unlimited number of designs, as long as they are in one Locarno class.

The scope of protection conferred by a design shall include any design which does not produce a different overall impression on the informed user. In assessing the scope of protection, account shall be taken of the degree of freedom of the designer in developing his design. The maximum lifetime of a registered design is 25 years.

If you do not register your design, an unregistered EU design has three years protection from the date of first disclosure within the EU. However, the scope of protection is limited to copies and proving the date and scope of disclosure is often difficult.

It is therefore advisable to obtain design protection by registration, as the scope of protection is broader and the protection can last much longer.

When registering the design, it is recommendable to select the drawings carefully. By adding disclaimers (e.g. dashed lines), elements that do not contribute to the design can be disclaimed. This allows some generalization of the design. For example, you can protect a design of a handle regardless of whether it is used for a knife, a spoon or a fork.

Grounds for cancellation are inconsistency of views, lack of novelty or individual character. The requirement of individual character is met if the design has a different overall impression from a prior art document.

Unlike patents, there is a 12-month grace period. Therefore, your own disclosures within this period are not relevant for the assessment of novelty or individual character. However, it is advantageous to register the design before disclosing it, as this improves your position against possible conflicting designs filed after your design has been disclosed.

In Europe design protection can also be obtained for logos (Locarno Class 32), e.g. a new company or product logo, an ornamental design, the interior decoration of buildings. On the one hand, the protection of a logo by a design can often give even a better position or at least a good flanking position to a trademark, since design protection protects the logo per se and does not require that it be used to distinguish a particular product (or service) from others. On the other hand, the scope of the trademark protection increases with its use and small differences between logos may be less important in trademark infringement proceedings than in design infringement proceedings. It is therefore advisable to protect new logos first as designs and then, in parallel or subsequently, as a trademark.

If you have any questions about designs, please do not hesitate to contact us.