General

What is an industrial design?

A drawing or design is related to the appearance of a whole or part of a product. A 'product' means any industrial or handcraft item, including inter alia parts intended to be assembled into a complex product. Drawings are two-dimensional, such as patterns on materials or paper. Designs are three-dimensional: the packaging of milk, for instance. Protection is not possible if the object's design is necessary for a technical effect; this comes under patent law (see information under Patents).

 

Requirements

A valid design right can be obtained for the appearance of a product which is new and has individual character. The novelty requirement means that no identical design or design differing only in immaterial details may have been made available to the public before the date of filing of the application for registration or, if priority is claimed, the date of priority. There is one exeption to this novelty requirement. The owner of a design can apply for the design right uptill one year from the date of publication. This is called the “terme de grace”. The requirement of individual character is fulfilled if the overall impression it produces differs from the overall impression produced by any design which has been made available to the public before the date of filing of the application for registration or, if priority is claimed, the date of priority.

 

How to obtain a design right?

A design right may be applied for in the Benelux countries with the Benelux Office for Intellectual Property. It is also possible to file an international design application with the World Intellectual Property Organization (WIPO). Moreover, it is possible to obtain a design right for the entire European Union, analogous to the Community Trademark (see information under Community trademarks).

A special regime applies to unregistered Community designs: since 6 March 2002 designs have been protected within the European Union without any application being required. It is a requirement, however, that the design has been made available within the European Union, for instance by means of publication, exhibition or sale. That protection is limited, however, to deliberate copying of the design.

In some countries, designs may be registered only with national trademark and design offices. The offices perform only a formal investigation, but no substantive originality investigation. If the formal requirements have been met, the design will be registered.

It is possible to file an individual or a multiple application. An individual application relates to only one design. A multiple application relates to a maximum of 50 different designs. The designs must be related (such as a dinner service) or different products with the same design may be involved.

 

Period of validity of the right

The registration of a design in the Benelux countries is valid up to five years after the date of the application. It may be renewed four times for another five-year periods which means that the maximum protection period is 25 years.

A community design right is valid for 5 years, which term can be extended four times with equal periods of 5 years.

An international design registration is also valid for five years and, depending on the countries in question, may be renewed once or several times for equal periods.

An unregistered Community design will be protected for a period of three years as from the moment at which the design was first made available within the EU.

 

Costs

The costs and honoraria of applying for an industrial design right are available upon request.

De Vries & Metman can advise and assist you in obtaining design rights.