A guide to industrial design rights: design patents and registered designs

Industrial design rights are essential in the legal landscape of intellectual property. These rights safeguard the aesthetic aspect of a product, ensuring that unique designs receive the recognition and protection they deserve. 

This article delves into the details of industrial design rights, from the qualifying criteria to their protection, renewal, and how they compare with patents and copyrights. Whether you're an inventor, designer, entrepreneur, or simply interested in the legalities of design, this comprehensive guide will explain this way of protecting your creative work.

Terminology: registered design or design patent

Industrial design rights can be granted as design patents or registered designs, and their name and the coverage of the protection vary based on regions. In the United States, the term design patent is used for design right protection, whereas in Europe, the word “patent” is generally only used for technology related innovation, therefore aesthetic intellectual property rights are called registered designs or community designs under the EUIPO legislation. 

What do industrial design rights protect

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Design patents and registered designs generally offer legal protection of the ornamental design of a product.

They cover a product's:

•  specific shape
•  configuration
•  composition

This can include a pattern, color, or a combination of both and can be either two-dimensional (like a pattern or design that is flat) or three-dimensional (having depth, height, and width, like the shape of an object).

Design rights can protect the aesthetics of a wide range of products, from consumer electronics, like smartphones and wearables, to fashion items and furniture. For instance, the unique shape of a Coca-Cola bottle or the distinct appearance of Adidas sneakers are protected intellectual properties under design patents. The integral nature of the design to the product is what makes it eligible for protection.

Generally, inventors need to come up with a design idea that is original and not purely utilitarian. For example, Apple's iconic design for the iPhone, with its distinctive shape and interface, is protected under several design patents. In certain jurisdictions, there is a special emphasis on the individual character and novelty of the design.

How to register for industrial design rights
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If inventors want to register a design in different countries, they have multiple options based on the preferred coverage. Applying for individual registered designs or design patents is possible, in case the design right protection is only needed in certain countries or local jurisdictions. In case inventors need broader protection, they can apply for a European design at EUIPO and their designs will be protected in all the member states of the European Union, except the EEA countries. For even more widespread protection, inventors can register for industrial designs covered by the Hague System to get designs protected in 91 countries and unions. 

Renewal and protection of designs

The duration of the protection and the need for maintenance or renewal fees for design rights vary based on jurisdictions, but generally designs offer long-term protection, usually from 15 to up to 50 years, with less frequent need for renewals. In the United States, design patents do not need maintenance at all, while under the EUIPO legislation, renewals are required every 5 years.

The list below shows the Hague System members and the maximum length of design protection they offer in parentheses when acquiring registered industrial design rights.

Hague System members:

• African Intellectual Property Organization (15 years)
• Albania (15 years)
• Armenia (15 years)
• Azerbaijan (15 years)
• Belize (15 years)
• Benelux (25 years)
• Benin (15 years)
• Bosnia and Herzegovina (25 years)
• Botswana (15 years)
• Brunei Darussalam (15 years)
• Bulgaria (25 years)
• Cambodia (15 years)
• Côte d'Ivoire (15 years)
• Croatia (25 years)
• Denmark (25 years)
• Democratic People's Republic of Korea (15 years)
• Egypt (15 years)
• Estonia (25 years)
• European Union (25 years)
• Finland (25 years)
• France (25 years)
• Gabon (15 years)
• Georgia (25 years)
• Germany (25 years)
• Ghana (15 years)
• Greece (25 years)
• Hungary (25 years)
• Iceland (25 years)
• Italy (25 years)
• Japan (20 years)
• Kyrgyzstan (15 years)
• Latvia (25 years)
• Liechtenstein (25 years)
• Lithuania (25 years)
• Mali (15 years)
• Monaco (50 years)
• Mongolia (15 years)
• Montenegro (25 years)
• Morocco (50 years)
• Namibia (15 years)
• Nepal (25 years)
• Niger (15 years)
• Norway (25 years)
• Oman (15 years)
• Poland (25 years)
• Republic of Korea (20 years)
• Republic of Moldova (25 years)
• Romania (25 years)
• Russian Federation (25 years)
• São Tomé and Príncipe (15 years)
• Senegal (15 years)
• Serbia (25 years)
• Singapore (15 years)
• Slovenia (25 years)
• Spain (25 years)
• Sweden (25 years)
• Switzerland (25 years)
• Syrian Arab Republic (15 years)
• Tajikistan (15 years)
• Sri Lanka (15 years)
• The former Yugoslav Republic of Macedonia (25 years)
• Tunisia (15 years)
• Turkey (25 years)
• Ukraine (15 years)
• United Kingdom (25 years)
• United States of America (15 years)‍

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Designs compared to patents and copyrights

Design rights are easy to confuse with patents due to similarities in their names in certain countries, and by definition they might seem hard to differentiate from copyrights due to the elements they protect. To clear up the confusion, we summarized the similarities and differences between these IP rights:

• Coverage of the protection: Design patents/registered designs are responsible for protecting the aesthetics of an item. These ornamental elements do not need to bear functionality. In case the invention to protect is also improving or changing the functionality of the product, and is not only an aesthetic element, the invention might be more suitable for a patent, or a utility model, which protects newly invented technologies and new technological improvements.
  
  Copyrights protect any original work of authorship that has been fixed in a tangible form of expression. As opposed to registered designs, however, they do not need to be connected to a useful item, and the copyright does not protect the item itself, only the work of authorship. On the other hand, if an inventor receives a design patent or registered design, and the design is also separable from the useful aspects of the article, they might also be eligible for a copyright.

• Application & fees:  Designs can be registered at national intellectual property offices, or at other jurisdictions such as the EUIPO or the World Intellectual Property Organization, similarly to patents, which inventors can also apply for on a national or jurisdictional level. Registering copyrights, on the other hand, is optional, as copyright protection automatically applies from the moment of creation, which is not true about industrial design rights.
  Pricing therefore for copyrights is generally free,  application fees for design rights vary by jurisdiction but are still usually lower than patent application fees. 

• Duration and renewal options:  Copyrights offer the longest protection, usually at least 50 years after the author's death. Designs and patents have limited validity regardless of the inventor's lives, and are valid for 10-25 years depending on jurisdiction. For patents and designs to be valid, however, most of the time periodic maintenance or renewals are necessary with an attached maintenance/renewal fee, as opposed to copyrights, which do not need to be renewed.

An effective IP strategy involves a mix of different types of protections. Design rights and patents complement each other by covering both functional and aesthetic aspects of an invention, offering a well-rounded defense against infringement. This approach is crucial for companies that place a high value on both the design and functionality of their products.

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