How to protect your design

Protecting your design is a concern for many startups. It’s a vital part of ensuring that your brand is solid, and that nobody can steal what makes your product or service unique. But what can you protect, and how? The legal experts at DWF LLP had a chat to us about how you can protect your design.

What is a design?

Put simply, a design is the appearance of a product – particularly shape, texture, colour, and the materials it’s made out of. Design can cover anything from the packaging of a foodstuff to the prototype of a cutting-edge vacuum cleaner. To qualify as a new design that can be protected, however, it must be different from any existing design.

To protect a design, you can register it – either as a UK-registered design (protected in the UK), or Community registered design (protected in the EU).

Registered designs

To register a design, the design must be different to anything else out there. It must be new and of “individual character”. It must also create a different overall impression on an informed user – aka someone looking at it must recognise it as yours, separately from the design of another company or individual. Your registered design will be protected for five years initially; you can then renew it every five years, up to a maximum of 25.

If you’ve used this design publicly, you have to file the design application within 12 months of disclosure, else your design can’t be protected. So if you have a really sensitive prototype, be aware of this – you can always use NDAs, however, if you need the input of others, or if you are working on it with those not directly associated with your company.

If your design is registered, this gives you exclusive rights to the design. It can stop people making your design, or putting it on the market, and it can stop people importing, exporting, using or stocking a product that uses your design.

What can be protected?

2D and 3D designs can be protected, including surface patterns, the shape of the product and how it’s set out, and the packaging of the product too.

  • Exclusive rights in a design
  • Can stop people making, putting on the market, importing, exporting, using or stocking a product to which your design is applied

What can be protected?

  • 2D or 3D designs

Unregistered designs

Things get a bit more complicated when your design is unregistered. Unregistered design rights apply automatically to a complete product and its parts, whether external or internal – but only in respect of 3D shape. So if your design is 2D, you’re not protected.

As with a registered design, your design must be unique. You’re only protected in the UK, and proving that your design is the original and novel design, you must prove that someone has copied you, and must also maintain good records to prove your ownership.

Unregistered designs are protected for 15 years from when you first created them, and 10 years from when you first marketed them – but it all relies on you keeping good records to prove your ownership. In the EU, your unregistered design is protected for three years from publication.

How can I make sure my design is unique?

In order to keep your design unique, ensure you’re not stepping on anyone else’s footsteps and protect your brand and ideas, follow these tips:

  • Design from scratch – never be tempted to borrow elements of a competitor’s design, or to copy them.
  • Just having a few different elements in your design might not be enough to protect it – make sure it’s completely unique.
  • Make sure you research similar designs however – not to copy but to make sure you’re not inadvertently getting too close to what they offer.
  • Even if you do come up with the design yourself, don’t assume that it won’t infringe a design that already exists – do the research to make sure you’re completely in the clear.

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