Design rights
In a world where 10% of products in worldwide circulation are fakes, it is essential that designers can formally protect their intellectual property, and commercially exploit and capitalize their innovative ideas. This section outlines the issues surrounding intellectual property rights, copyright, and more general legislation involved in product design.
Intellectual property
Intellectual property is the area of the law that protects designers’ innovative work, enabling them to commercially exploit their work and stop other designers, companies, or individuals from misappropriating them. Designers, manufacturers, and companies are highly vulnerable to having all, or aspects of their ideas, work, or technology copied. This can result in serious operational or financial problems, so they need to protect themselves by establishing legally that they hold the exclusive rights to a particular design.
Once legal protection has been granted to the “rights holding” designer, he or she can exercise this to prevent third parties from copying, manufacturing, or adopting features of the relevant designs or technology. If designers fail to obtain protection they leave themselves open to unauthorized acts of plagiarism, and will be unable to prevent their ideas being used. They will also be unable to claim any payment for such actions.
Protecting your designs
In order to protect your work, and avoid suffering at the hands of copycats, you should start by identifying what aspects of your design/s are unique or innovative, as these are all important details that could give your designs and products the protection they need. If you feel that you need to seek legal protection, consult a legal advisor specializing in intellectual property and design law. Government bodies such as the United States Patent and Trademark Office (USPTO) offer support in making applications, and trade associations and organizations also offer valuable advice, such as Anti Copying in Design (ACID). ACID has assisted many businesses in their defense of their designs against copycat products, and offers excellent preemptive protective advice to young designers entering business.
When a designer is considering talking to a company or manufacturer about a new design, he or she should strongly consider the use of a non-disclosure agreement (NDA). NDAs are commonly signed when two individuals or companies are considering doing business together and need to be exposed to each other’s commercially sensitive information for the purpose of evaluating the potential business relationship. These legally binding contracts outline confidential materials or knowledge the designer and other party wish to share with one another for certain purposes, but wish to restrict access to, with the parties agreeing not to disclose information covered by the agreement. NDAs create a confidential relationship between the parties to protect any such information or a trade secret, and protect a designer’s intellectual property.
Intellectual property law is made up of many elements of legal protection, and a designer who owns the intellectual property of their work will be concerned with any number of them. What follows is a basic introduction to the key routes of protecting design ideas and work.
Registered design rights
A registered design provides protection for the appearance of the whole or part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture, or materials of the product or its ornamentation. The benefits of registering a design are considerable, establishing the priority of a design over others, and giving a legal monopoly right for the outward appearance of a design. Once a design has been legally registered it can be bought, sold, hired, or licensed like any other commodity, and the designer is consequently free to negotiate his or her own price.
Legal experts will always suggest that you apply to the patent office as soon as possible, ensuring nobody else registers the same or similar design before you do. However, you may want to wait until you know whether your product or service is profitable before you incur the expense of registration.
Unregistered design rights
Uniquely in the European Union, designers are granted limited protection against the copying of the shape and configuration of a design for a maximum of three years (ten years in the UK). However, it is almost always cheaper and quicker to enforce rights in a registered design than in an unregistered design, and designers do not benefit from monopoly rights.
Copyright
Copyright is a form of intellectual property that gives the creator of an original work “exclusive rights” for a certain time period in relation to that work, including its publication, distribution, and adaptation, after which time the work is said to enter the public domain. It protects the form or expression of a work rather than the idea underlying it—for example, manufactured products, or their surface decoration, drawings, manuals and text and other product documentation, as well as the artistic aspects of product packaging. Copyright does not merely cover the aesthetics of an object but can also be applied to sounds such as Microsoft’s distinctive jingles, tastes such as Coca-Cola®, and smells such as Chanel No. 5 perfume.
The intent of copyright is to allow “authors,” such as designers, to have control of and profit from their works, thus encouraging new works and the flow of ideas and learning. Although copyright comes into being automatically when the relevant work is created, it is advisable to register a copyright with the Library of Congress. The copyright holder thereby invokes the jurisdiction of the federal courts and customs service if infringement occurs.
Trademark
Trademarks, identified by the symbols ™ and ®, are words, logos, devices, or other distinctive features that can be graphically represented. They are used by companies to clearly and legally distinguish its products from competitors. Designers and/or companies that legally register such trademarks protect them indefinitely, subject to paying renewal fees. In the US, however, only the ® symbol (and not ™) has legal standing in every state. It may also only be used after federal registration of the trademark with the USPTO.
Patent
Patents cover creations such as unique mechanical devices, mechanisms, and processes, and protect inventions. When applying for patents at the patent office, the applicant must demonstrate that the relevant invention is new and capable of commercial application. Patents must be applied for in each legal territory (country or group of countries) where exploitation is intended to take place. In the US, designs can be protected by two types of patent: a utility patent (which covers the utility and mechanical features of an invention) and a design patent (covering a product’s form, or visual detailsor decorations).
Patent applications take a considerable effort to verify, with the designer and patent officer having to conduct detailed searches to discover if a design has already been patented or if it infringes on existing work. Once a patent has been applied for it is covered for a year from the effective filing date, and enables the designer to apply the term “patent pending” to the product. In the US, a “provisional patent” protects an invention for one year. The designer can then take this time to decide whether it is economically justifiable to convert to a utility patent at the end of the year.
It is worth pointing out that if a designer/inventor publishes or markets a product without the benefit of a patent they will be deemed to have placed their ideas in the public domain and will not enjoy any intellectual property protection. When determining whether an invention can be awarded a patent, you should search for existing patents to validate their discoveries using online patent office databases. This is a crucial step, and one that will help to provide the best possible patent protection for your inventions, enable you to gain insight into competitors’ designs, and avoid future conflict if you risk infringing on previous patents.
In conclusion, designers and companies need to evaluate what forms of intellectual property protection are possible and required for every new product design developed, manufactured, and brought to market. For example, when BMW launches a new car, it will ensure that it exploits a range of protection of its design rights. The car’s carefully evolved appearance and brand aesthetic will be protected by design registration; its manuals will be protected by copyright; the “BMW” brand will be a registered trademark, and BMW will use patent protection to cover numerous mechanical features.