1. What is an Industrial Design?
2. How Can One Protect Their Designs?
3. Applying for Industrial Design Protection

Industrial design intellectual property refers to compositions of colors or lines which give a three-dimensional look to a handicraft or product. This constitutes the aesthetic or ornamental part of an article in a legal sense.

What is an Industrial Design?

The owner of a design patent or an industrial design that's registered has the rights to stop third parties from the following:

  • Selling articles that have a copy of the design
  • Making articles with a similar design
  • Importing articles that bear a design that's a copy of the original one

Copies of any form are not allowed when the purpose is for commercial use. There is a wide range of products of handicraft and industry items that these designs apply to. This includes containers, packages, household goods, furnishing, jewelry, lighting equipment, textiles, and electronic devices. Industrial designs also apply to graphical user interfaces, logos, and graphic symbols. Most countries require an industrial design to be registered so it can be protected under industrial design and considered a registered design. Some countries allow unregistered industrial designs and scope limited protection.

Depending on what the design is and what the national law is, industrial designs can be protected under copyright law as works of art. Most countries grant industrial design rights for at least 10 years, although the duration varies in each country. Many countries allow the total duration the rights are protected for to be divided into renewable periods that are successive. These rights are enforced in court and the penalties and remedies vary in each country. The industrial design right shields the aesthetic or appearance features of a product, while an invention is protected by a patent with a new solution.

How Can One Protect Their Designs?

Industrial design protection covers a color, shape, surface pattern, line, or configuration of an article that increases or produces aesthetics and improves the appearance of a design, whether it's two-dimensional or three-dimensional. Protection rights last for a period of 10 years and can be renewed one time for an extra period of five years. In order for a design to qualify for protection, it must be non-obvious, visible on the finished article, applicable to the functional article, and have no prior disclosure of publication of the design.

Applying for Industrial Design Protection

Depending on what the laws are, industrial designs that are independently created must be novel or original. This will vary in each country and is usually considered to be novel or new if it hasn't been disclosed to the public previously. It's considered original if the design is different from other known designs. The office of the intellectual property grants industrial design patents or registrations based on the country where the application gets filed. An application to register the industrial design may be filed or one may be able to appoint an agent in some cases.

The filing cost for protection differs in each country, so it's best to talk to the national intellectual property office to find out more details on the exact fee structure. If filing for protection abroad, it's important to note that there will be more costs for using a local agent and for translation. Industrial design rights are considered territorial, meaning the rights are limited to the region where protection has been granted. No international or world industrial design right exists. In order to get protection from another country, an application must be submitted for the industrial design for each country.

In order to avoid submitting multiple applications, WIPO's Hague System allows companies to register a maximum of 100 designs in a wide number of territories through one application. It's essential to file the application for registration before the patent is publicly destroyed. This way it retains its originality and novelty. Once the design gets disclosed to the public, it might become part of the public domain and is not considered original or new anymore.

Some countries do allow a grace period of six to twelve months to file after the disclosure of the design. This creates a safeguard for those who disclosed their design before filing for protection.

If you need help with industrial design intellectual property, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.