Registered designs: are you missing out?
Tuesday 21 February 2012
Suppose you develop a fantastic product. You might consider applying for a patent to protect the product or how it works. You might also think about applying for a trademark to protect the product’s name or branding. Would you also think about protecting the appearance of the actual product using registered designs?
Registered designs protect the appearance of the whole or a part of a product. A registered design gives its owner the exclusive right to prevent any third party from using the design.
Registered Community Designs (RCDs) provide a particularly efficient and cost-effective way of obtaining design protection across the whole of the European Union: currently 27 states. It is, however, possible to obtain registered designs in many countries individually, both inside and outside the EU.
What can registered designs be used to protect?
It’s not too surprising that registered designs are used to protect products in fields such as furniture and fashion where the design and appearance of the product is often more important than how it works or its name.
However, while registered designs remain extremely valuable in ‘traditional’ design fields such as these, they are becoming increasingly more valuable in ‘non-traditional’ design fields. This is one area in which entrepreneurs are missing out on registered designs.
The ‘digital’ space is an example of a non-traditional design field in which the enormous potential value of registered designs is gradually being realised. There are already a great number of registered designs for computer icons, website layouts, mobile phone keypad layouts and the like. The well-documented recent battle between Apple and Samsung over tablet devices revolved more around one of Apple’s RCDs than its patents or trademarks.
Another area in which design registrations are becoming increasingly common is in protecting logos. Whereas trademark registrations remain the strongest form of protection for logos, a registered design supplements trademark protection for the logo, particularly because an RCD enables its owner to stop use of the design on any product.
RCDs can take just a few days from filing to registration. They also provide excellent economies of scale when several designs are included in a single application.
Limitations and pitfalls of registered designs
Registered designs do, however, have limitations and possible pitfalls for the unwary.
The visual representations of the design must be prepared very carefully as they define the scope of protection of the design registration. For example, a photograph of a product sitting on a table with a lamp on it with various other items in the photograph is unlikely to provide protection for the product itself; rather, the whole scene of the photograph would be protected.
Also, be aware that RCDs can publish very soon after they are filed. This could be disastrous if you plan to apply for a patent for the product embodying the design later. In such cases, publication of the RCD can be deferred.
Entrepreneurs are missing out on registered designs, perhaps because their versatility and benefits are not sufficiently well-known. Registered designs might not be suitable for every business or every product, but you should keep in mind that they are potentially very valuable in more cases than you might imagine.
Iain Russell is a Senior Associate at EIP
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