An industrial design (german : Geschmacksmuster) is a protective right which covers the outer esthetical appearance of a product. A design can be filed in the form of a drawing or a photograph which represents the features to be protected. After a check of formal requirements the design will be registered for a number of up to 25 years (Germany). An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product or industrial commodity
In the European Community a registered design (RCD) can be obtained for a lifetime of up to 25 years. Similar national registered designs are available in most countries of the world, subject to payment of an official fee and meeting other formal requirements. In Kenya, Japan, South Korea and Hungary, industrial designs are registered after performing an official novelty search. For the member states of WIPO, a coverage is afforded by an application according to the Hague Agreement, registration at WIPO and examination by the designated member states in accordance with the Geneva Act of the Hague Agreement.
In the United States, a design patent is a patent granted on the ornamental design of a functional item. Design patents are hence a type of industrial design right. Ornamental designs of jewelry, furniture, beverage containers and computer icons are examples of objects that may be protected by a design patent.
A US design patent covers the ornamental design for an object having practical utility. An object with a design that is substantially similar to the design claimed in a design patent cannot be made, used, copied or imported into the United States. The copy does not have to be exactly identical for the patent to be infringed. It only has to be substantially similar. Both novel fonts and computer icons can be covered by design patents. Icons are only covered, however, when they are displayed on a computer screen, thus making them part of an article of manufacture with practical utility.
The prosecution of a design patent encompasses all of the tasks necessary for granting a design patent. In the United States you must be the inventor, a registered patent agent or patent attorney to prosecute and file design patent applications. A typical United States Design patent application will include a transmittal, a specification, drawings and a declaration
The Community Designs Regulation was adopted on 12 December 2001. It comprises unregistered Community design protection existing since 6 March 2002 and registered Community design protection existing since 1 April 2003. The registered Community design (RCD) is an exclusive right for the outward appearance of a product or part of it, resulting from the features (in particular, the lines, contours, colours, shape, texture and/or materials) of the product itself and/or its ornamentation.
An RCD is valid in the European Union as a whole. It is not possible to limit the geographic scope of protection to certain Member States. An RCD initially has a life of 5 years from the date of filing and can be renewed in periods of five years up to a maximum of 25 years. Holders of valid registered designs have exclusive rights to use the design concerned and to prevent any third party from using it anywhere within the European Union. They will be protected against both deliberate copying and the independent development of a similar design.
The design rights cover, in particular, the making, offering, marketing, importing, exporting or use of a product in which the design is incorporated or to which it is applied, or holding stock of such a product for those purposes.
A single legal system applies to Community designs, providing strong and uniform protection throughout the European Union. The RCD system consists of a simple registration procedure:
- a single application, and a single language
- a single administrative centre, and a single file to be managed
- a single payment, and the possibility to file multiple applications (i.e. to include several designs in
one application, such as a whole range of similar products)
- the possibility to keep the design confidential for up to 30 months
During the examination, the applications are checked mainly for formalities (e.g. no search for novelty). The RCD confers on its holder the exclusive right to use it in the 27 Member States of the European Union. It prevents any third party of using the RCD without the consent of the holder.
After any future enlargement of the European Union, any RCD registered or applied for will automatically be extended to the new enlarged territory without any need to make any application or pay fees. The registered Community design (RCD) grants its proprietor an exclusive right to prevent unauthorised use of the design in trade. More specifically, the proprietor is entitled to prevent an unauthorised third party from making, offering, marketing, importing, exporting or using a product in which the design is incorporated or to which it is applied, or holding stock of such a product for those purposes. If an unauthorised third party engages in any of these practices, they are guilty of infringing the exclusive right of the proprietor. The proprietor of a RCD can act against these infringements by taking measures expressly provided for disputes concerning the infringement and validity of Community designs under the CDR (Section 2 of Title IX) and in particular via:
- Proceedings at the Community design courts
established under the CDR, or
- Filing requests for action with the customs authorities. This administrative procedure permits proprietors of
a RCD to request the EU customs authorities to retain suspected counterfeit goods while under their control.