General information about designs
Designs may consist of three dimensional features, such as the shape of an article, or two dimensional features, such as patterns, lines or color. The former name of it is industrial design. Design is the surface of the man-made environment. Great design focuses on the user, combines aesthetic, economic and practical values and is the way your customers identify innovative brilliance. Design protection shall be granted for any design which is new on a worldwide level and has individual character, and also if it is not excluded from protection for some grounds for refusal.
A design is a practical way to define and protect your innovation. A design is a company asset that can be traded or used as collateral, that rewards your creative effort, that acts as your Intellectual Property signature.
The definition of design is ‘The appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colors, shape, texture and/or materials of the product itself and/or its ornamentation’ (Article 3 of the Design Regulation)
Design can be packaging of the products, part of the products, composite of the products, logo, icon, web design ornamentation, typefaces, drawings or artwork.
In principle, the owner of a registered industrial design or of a design patent has the right to prevent third parties from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design, when such acts are undertaken for commercial purposes.
Examples of design features include lines, colours and shapes. Examples of the products to which they are applied or in which they are incorporated include packaging and logos.
There are two requirements for protection:
- The first is novelty meaning that the design must be new. In other words, no other identical design has been made available to the public.
- The second is that the design must have individual character. This requirement is not met if another design which creates the same overall impression on the informed user has already been disclosed.
Some designs are excluded from protection by law because they run counter to public order and morality.
In most countries, an industrial design needs to be registered in order to be protected under industrial design law as a “registered design”. In some countries, industrial designs are protected under patent law as “design patents ”.
Industrial design laws in some countries grant – without registration – time and scope limited protection to so-called “unregistered industrial designs”.
Depending on the particular national law and the kind of design, industrial designs may also be protected as works of art under copyright law.
National designs rights are granted for a limited period. The duration of the protection of industrial designs varies from country to country, but it amounts at least to 10 years. In many countries, the total duration of protection is divided into successive renewable periods.
In Hungary the design application can be filed with the Intellectual Property Office. The protection is based on photographs, graphics or substitute diagrams. The legal representation and the filing fee is significantly cheaper than at the patent applications. The protection is valid for 5 years, but it can be extended 4 times.
- Protection contributes to obtaining a return on investments
- Protection provides exclusive rights for at least 10 years
- Designs can be an important element of a company’s brand. Protecting industrial designs contributes to protecting a company’s brand.
- Opportunity to license or sell
- Protection helps convey a positive image of a company
- Protecting industrial designs rewards and encourages creativity
European Union Community designs
The European Union Community designs or Registered Community Design is valid not just in one country but in the all European Union. It is a unitary right that covers all the member states of the European Union (EU). Currently, the EU has 28 member states: Austria, Belgium, Bulgaria, Cyprus, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
Regarding Community Designs there are two options available: either protect the design with (Office for Harmonization in the Internal Market) OHIM before you commercialise it and obtain a registered Community design (RCD) or, alternatively, commercialise it directly without registration by relying on what is known as the Unregistered Community Design (UCD) right.
In the case of an RCD, a design is considered to be “novel” if no identical design has been made available to the public before the application date “Made available to the public” in this context includes publication, exhibition and use in trade Disclosures made by the designer during the 12-month period preceding the application date, however, are not considered to be prior disclosures. In the case of a UCD, a design is novel if no identical design has been made available to the public before the date on which the design for which protection is claimed has first been made available to the public.
A design has “individual character” if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design that has been made available to the public before the application date (for an RCD) or the date on which it was first made available to the public (for a UCD). An “informed user” is expected to have a certain level of knowledge or design awareness, depending on the character of the design to be assessed, but is not a design expert. In assessing individual character, the degree of freedom of the designer in developing the design also is taken into consideration.
- It can be obtained at a substantially lower cost than national design registrations in individual member states of the EU.
- One RCD application may cover a number of different designs (provided they all belong to the same class of product), which will result in further cost savings. This feature can be of great value in, for example, character merchandising.
- Because an RCD protects a specific appearance, it gives protection across all product lines. In other words, the design registration is not restricted to specific goods, but protects against use of the design on any product.
- Given the scope of RCDs and ease of registration, they may also be useful in helping to protect hard-to-register trademarks that consist of features such as product shapes, get-up, container shapes and packaging, color combinations, and typefaces.
- There is minimal official examination of an application, and no official searches are carried out. Furthermore, there is no opposition procedure.
- There is no requirement that the design be used in trade and consequently no risk that an RCD will be vulnerable to cancellation on the ground of non-use.
- It is possible to keep a design confidential for up to 30 months by deferring publication.
The International Design System
The International Design System is based on the the Hague Agreement, which is an international registration system which offers the possibility of obtaining protection for industrial designs in a number of States and/or intergovernmental organizations (both referred to as “Contracting Parties”) by means of a single international application filed with the International Bureau of the World Intellectual Property Organization (WIPO). It provides a practical business solution for registering up to 100 designs in over 65 territories through filing one single international application. The possibility of filing an international application under the Hague Agreement is not open to everyone. To be entitled to file such an application, an applicant must satisfy one, at least, of the following conditions: (a) be a national of a Contracting Party or a member State of an intergovernmental organization which is a Contracting Party, such as the European Union or the African Intellectual Property Organization, or (b) have a domicile in the territory of a Contracting Party, or (c) have a real and effective industrial or commercial establishment in the territory of a Contracting Party.
- It enables design owners from a Contracting Party to obtain protection for their designs with a minimum of formalities and expense. They are relieved of the need to make a separate national application in each of the Contracting Parties in which they seek protection, thus avoiding the complications arising from procedures and languages which differ from one State to another.
- It avoids the need for constant monitoring of the deadline for renewal of a whole series of national registrations, varying from one State to the other. In addition, it avoids the need to pay a series of fees in various currencies.
- The same result can be obtained by means of a single international registration, made in one language, on payment of a single set of fees, in one currency and with one Office (the International Bureau of WIPO).
- Moreover, by having a single international registration with effect in several Contracting Parties, the subsequent management of the international registration is considerably facilitated.