Design law: How to legally protect your products

Design law represents a key protection option for creative and innovative design ideas. Companies, designers and developers benefit from this legal instrument to protect their unique designs from imitation and to strengthen their market position. This article explains the basics of design law, the requirements for protection and the enforcement options.

Whether it's a trade mark application, a registered design or a patent – WSL Patent has been successfully helping established companies and start-ups to protect their intellectual property for 70+ years. As patent attorneys and attorneys-at-law, we have extensive industry knowledge and can advise you on all matters. Feel free to contact us for a non-binding initial consultation – whether in person at our offices or digitally.

What is design law?

A design within the meaning of the Design Act (DesignG) refers to the appearance of a product. This appearance can result from the lines, contours, colours, shape, surface structure or the materials used. The prerequisite is that the design is visible during the use of the product and can be employed in an industrial or craft context.

Examples of protectable designs are:

  • Product designs (e.g. furniture, vehicles, packaging)
  • Fashion items and accessories
  • Graphic symbols and surface patterns

Requirements for design protection

For a design to be legally protected, two key requirements must be met: Novelty and individual character.

A design is considered new if it has not been made available to the public before the filing date. This includes publications, presentations or the commercialisation of the design. Even a disclosure by the designer can affect novelty. One exception is the so-called grace period: within 12 months of an initial disclosure by the designer himself, an application can still be filed without losing novelty.

The individual character of a design is assessed on the basis of its overall impression. It must be clearly distinguishable from existing designs for the informed user. The difference must not be minimal or purely functional, but must be based on a creative contribution.

In addition, the design must be visible during use and intended for an industrial or handcrafted product. Purely technical features, on the other hand, are not eligible for protection.

By carefully complying with these requirements, the designer ensures a successful application and creates the basis for long-term and legally valid protection of his creative work.

Rights from design protection

A registered design grants the owner comprehensive rights. Above all, this includes the exclusive right of use. Third parties may not manufacture, market or otherwise use the design without authorisation. In the event of infringements, the owner of the design can assert claims for injunctive relief and damages.

The term of protection of a design is initially five years from the filing date and can be extended for up to 25 years. To maintain protection, regular renewal fees must be paid.

Application process in design law: step by step

A design application is filed with the German Patent and Trade Mark Office (DPMA). The process comprises the following steps:

  1. Search: Before filing an application, it is advisable to carry out a search to ensure that the design is actually new. The DPMA offers its own databases for this purpose, but it is also advisable to check international registers.
  2. Application: The application comprises at least one graphical representation of the design, a description of the design (optional) and a classification according to the Locarno classification. This classification assigns the design to a specific product category.
  3. Examination and registration: The DPMA only examines whether the formal requirements are met. A substantive examination for novelty and individual character does not take place. After a successful formal examination, the design is entered in the design register and published.

European and international design protection

In addition to national registration, it is also possible to protect designs throughout Europe or internationally. In the European Union protection is obtained by registering a Community design with the European Union Intellectual Property Office (EUIPO). Protection is valid in all EU member states.

For international protection, the Hague Agreement offers the option of registering designs in several countries simultaneously. Applications are filed centrally via the World Intellectual Property Organisation (WIPO), which significantly reduces the administrative burden.

Disputes and protective measures in design law

Disputes in design law arise if the design owner takes legal action to assert claims for injunctive relief or damages against infringement of its registered design. In return, the infringer may challenge the novelty or individual character of the registered design. A cancellation request can be filed with the DPMA, for example, if a design does not meet the protection requirements.

In order to avoid such conflicts at an early stage, a comprehensive search is essential. This includes checking national, European and international design registers to ensure that the projected design is actually new and unique before an application for a registered design is filed and before the design is put into use.

After registration, regular collision monitoring protects the owner against infringements by recognising potential conflicts at an early stage, for example by identifying imitations on the market. Specialised monitoring by experts or corresponding monitoring services can help to take quick and targeted action.

The combination of thorough research and consistent monitoring not only minimises the risk of disputes, but also strengthens the position of the design owner in the defence of his rights.

How a design law lawyer can support you

A design law attorney offers comprehensive support in all aspects of design protection. Even before the application is filed, he advises on the selection and formulation of the design documents, carries out searches and checks whether the design fulfils the requirements of novelty and individual character. This allows potential conflicts to be avoided at an early stage.

The attorney handles communication with the German Patent and Trade Mark Office (DPMA) or other authorities. Also during the application process, he ensures that all formal requirements are met.

If disputes arise, for example due to counterfeiting or cancellation requests, our law firm will represent your interests as a designer and entrepreneur. Together, we enforce claims for injunctive relief and damages and support you in negotiations or court proceedings.

Thanks to the expertise of our specialised lawyers, design protection is legally secured, preserved in the long term and effectively enforced. This gives you as a designer and entrepreneur the necessary legal certainty for your creative ideas.

Conclusion

Design law offers valuable protection for the creative design of products and strengthens the position of designers and companies in the competitive market. Thorough research, precise registration and consistent monitoring are crucial to ensure long-term protection.

In the event of disputes or legal uncertainties, support by a specialised attorney is essential. With a strategic approach, innovative designs can be legally secured and sustainably protected – an important step in ensuring creative success on the market.

As a law firm specialising in patent and trademark law, we have the expertise and the right tools to support you in your searches. Thanks to our decades of experience, we can also provide you with comprehensive advice on the possible options and give you an assessment of the market and legal situation. We are also happy to take care of the entire design application process for you.

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