The term "design", in the field of IPR, means the appearance and form of the whole or a part of a product. In other words, design protection is used to protect the aesthetic features of a product.
Examples of products that may enjoy design protection are packaging, toys, tools, jewellery, household appliances, textiles, clothing etc.
For more information on designs please click on the links below.
- Design basics
- What is a design?
- What can be design protected
- What is required for protection?
- Why protect a design?
- How to obtain design protection?
- Design protection in other countries
- Design protection in Denmark
- Design protection in the European Community
- International design applications under the Geneva Act of the Hague Agreement
What is a design?
The term "design", in the field of intellectual property rights (IPR), means the appearance and form of the whole or a part of a product. In other words, design protection is used to protect the aesthetic features of a product.
What can be design protected
Some examples of products falling under the category "design" are packaging, toys, tools, jewellery, and household appliances. The functionality or technical features of a product cannot be design protected and should be covered by other methods of protection, i.e. patent protection or utility model protection.
Designs may be used in conjunction with trademarks to protect the entirety of a product. For example, in addition to the protection of the Coca-Cola name by registered trademark, the shape of the bottle and design of the logo are protected by registered design (the bottle is also protected by trademark).
Registered designs are preferable to non-registered designs as the latter provides no protection against deceptively similar designs.
What is required for protection?
A registrable design must be novel, in that it must not be publicly known prior to the filing of an application. Thus, the object for the design must not have been put on the market, displayed in exhibitions or brochures, or mentioned in lectures etc. In addition, a design must have individual character and differ substantially from already marketed products and prior registered designs.
The Danish Design Act of 1 October 2002 introduced a grace period of 12 months. This gives the proprietor an opportunity to:
- publish the design; and
- test the position of the design on the market before applying for registration of a design.
However, in order to maintain the novelty of the design, it is necessary to file a design application within 12 months of the publication of the design. If no such application is filed, the design will not be considered novel and will not be registrable.
Why protect a design?
- Design protection gives you a competitive advantage in the marketplace by helping you differentiate your product from others.
- Design protection adds value to your design/trademark and to your business.
- By protecting your design, you can prevent others from commercially using a design identical or very similar to your own design.
How to obtain design protection?
Design protection is obtained by filing a design application with the Patent and Trademark Office. The design team at Høiberg will assist you in preparing and filing your application.
Design protection in other countries
The first design application filed is a priority-founding application establishing a right to claim priority according to the Paris Convention. The Paris Convention is an international convention aiming at harmonising national legislation in the field of intellectual property. The establishment of a priority implies that an applicant may file a design application in countries having ratified the Paris Convention within 6 months after having filed a priority-founding application.
A design application claiming priority from a priority-founding application will be considered filed on the filing date of the priority application. The priority date of an application is of importance in connection with judging the novelty of the design and the relationship of the application to earlier applications. It may, therefore, be of the utmost importance to obtain an early filing date.
We would be pleased to advise you on any issues relating to filing design applications abroad.
Design protection in Denmark
An application should as a minimum be accompanied by the following:
- information on the applicant (or creator, if different from the applicant)
- picture(s) showing the design
- possible priority information.
Priority may be claimed in accordance with the Paris Convention. The priority period is six months.
- The design application is only examined in respect of formalities. If desired, a novelty search may be conducted by the Danish Patent and Trademark Office on request.
- When accepted for registration, the design registration will be published for opposition purposes in the Danish Design Gazette. The opposition period runs for 2 months.
- If no oppositions are filed against the registration of the design, the design registration will become final.
The duration of a design registration in Denmark is 25 years. The first registration period runs for 5 years and the registration is then renewable for one or more periods of five years each, up to a total term of 25 years from the date of filing.
Design protection in the European Community
Since 2003, a single application filed at the European Office for Harmonization in The Internal Market (Trademarks and Designs) provides design protection in all 25 EU members.
Legal aspects of designs:
Definition of a design according to the regulation
"Design" means the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape and/or materials of the product itself and/or its ornamentation.
A design shall be protected by a Community design to the extent that it is new and has individual character.
Several designs may be combined in one multiple application for registered Community designs provided that they belong to the same class.
A design shall be considered to be new if no identical design has been previously made available to the public.
Term of protection
Once registered, a community design shall be protected by a period of five years as from the filing date. The registration may be renewed for one or more periods of five years each, up to a total term of 25 years from the date of filing.
International design applications under the Geneva Act of the Hague Agreement
In addition to the EU design it is now also possible to apply for an international design registration under the Geneva Act of the Hague Agreement. As of 9 December 2008 Denmark has ratified the Geneva Act. Among other things this means that Denmark can now independently be designated in connection with an international design registration.
Obtaining protection under the Geneva Act entails filing of one single application, designating either all member countries or selecting some member countries. It is even possible for a Danish applicant to designate Denmark in the application and a prior Danish application or registration is not a prerequisite. At present there are 34 member countries under the Geneva Act, and more are added every year.
- Simple and flexible system requiring only a single application.
- Centralised renewal for all states.
Who may use the Geneva system
The Geneva system concerning the international registration of designs can be used by any citizen or company who is domiciled in a member country. It is however a requirement that you are either a national of, are domiciled in or have a real and effective industrial or commercial establishment in a country party to the Geneva Act of the Hague Agreement.
Geographical scope of protection
An application for international design registration has to designate one or more countries in which the design is to be protected.
Priority from a national application in a country party to the Geneva Act or who is a member of WTO may be claimed in accordance with the Paris Convention.
Prosecution of the international registration
Requirements for protection: A design can be protected as an international design to the extent that it is new and has individual character.
Novelty: A design is considered as being new if there has been no identical design previously known to the public.
Multiple application: Several designs may be combined in one multiple application for an international design (however there is a maximum of 100 designs per application) provided that they belong to the same class.
Formalities: In order for the application to be considered as having been filed, it must meet some basic formal requirements. The application has to be filed in English or French, contain information about the applicant, reproduction of the design, and an indication of the product the design will be used for. It is also required to indicate which countries the application is to be designated for. When the formal requirements have been meet, the design is registered in WIPO's international design database and published.
Designated countries: When the designation has been published, WIPO will send a copy of the publication to the design authorities in those countries which have been designated in the application. The design application is then examined under the same rules as national applications. Each designated country has the right to refuse the application if it does not meet the national formalities requirements. If the design in the international application does not meet the national requirements of a particular country, the national design authority of that country may refuse, partially or totally, the effect of the international registration in that particular country. Such a refusal will not have any effect on the protection of the design in the other countries designated in the international application. The time limit within which a country must inform of their refusal is as a main rule 6 months.
Duration of protection: Once registered, the international design shall be protected for a period of five years. The registration may be renewed for one or more periods of five years each, up to a total term of 15 years from the date of filing. For those designated countries where the national law issues protection for more than 15 years for a design, the protection period for the design will be in accordance with the design law of the country in question.