A drawing or design refers to the visual and aesthetic appearance of a product - i.e. its shape, layout, texture - and in general any ornamental aspect which does result from functional considerations.
The registration of a drawing or design may provide an appropriate means of protection where the visual aspect of a product constitutes a sales argument or forms an integral part of the product's image.
Registration gives the exclusive right to manufacture, import, export, use or stock any product in which the design or industrial model is displayed or incorporated, or to license said right to a third party.
The registration gives the right to take legal action against anyone who infringes these exclusive rights and to file a claim for damages which may be enough to discourage a potential counterfeiter.
In some cases, protection through copyright may suffice although this does not offer any protection against someone copying certain parts of an industrial design.
Inventions are protected through patent registration.
A drawing or design can be registered at Benelux level, European level or at international level.
Who is concerned
The rights which protect a drawing or design belong to their creator, the applicant or his/her beneficiary:
- the creator is the natural person who created the object;
- the applicant is the natural or legal person who owns the rights concerning a drawing or design at the time of registration;
- the beneficiary is a natural or legal person who has received the right to use the drawing or design.
To be registrable, a drawing or design must be new and have individual character.
Drawings are 2-dimensional representations.
Designs are 3-dimensional representations or objects.
A drawing or design may refer to the appearance of the product as a whole or only a particular element of the product. It may contain 2-dimensional elements such as patterns, lines or colours, as well as 3-dimensional elements such as the shape or texture of the product.
It is possible to register as an industrial drawing or design any characteristics which are only linked to the visual aspects of the product and not to any functionality or to the fact that it may be fitted or matched to another product of a more complex nature.
The following are excluded from protection:
- purely decorative objects which do not have a useful purpose;
- ideas, as they are not material.
How to proceed
Verifying the novelty of a drawing or design
Before registering a drawing or design, applicants must verify that it is new.
A drawing or design is only considered to be new if no other identical or very similar creation has been presented publicly prior to the registration or priority date.
Moreover, a drawing or design must have its own distinctive character, i.e. it must present major characteristics which distinguish it from other drawings or designs already presented to the public.
To verify this, the applicant may:
- search in specialised literature, magazines or on the internet;
- seek assistance from an expert (for example a registered Intellectual Property lawyer);
- request an 'identical search' by the Benelux Office for Intellectual Property (BOIP) in the Benelux design register;
- search the availability of the design within the European Union or check the International Designs Register.
Registering a drawing or design
There are 2 types of registration:
- a simple design application for registration for a single drawing or design;
- a multiple design application for several drawings or designs that apply to objects which are in the same class under the International Classification for Industrial Designs.
A drawing or design can be protected in one or more countries at the same time.
In Benelux countries, national registration no longer exists, the protection covers the 3 countries.
Applicants must send a Benelux application for a drawing or design and, where applicable, the annexes for a multiple filing to:
- either the Office for Intellectual Property;
- or the Benelux Office for Intellectual Property.
Registering a simple drawing or design costs EUR 108 plus EUR 10 per representation (photo, illustration, etc.).
It is also possible to be protected outside the Benelux in all the countries of the European Union.
Applicants have to submit the following to the European Union Intellectual Property Office (EUIPO):
A single application is subject to a fee of EUR 350.
The creator benefits from EU-wide protection for unregistered designs. The protection is granted as soon as the design is made public in the EU. It is limited to a period of 3 years.
If the applicant is going to market his product outside the EU, he/she must register the creation with the World Intellectual Property Organization (WIPO):
- either by filing an online international application for an industrial design (The Hague system);
- or by filing an international application for an industrial design by fax or standard mail.
Fees vary according to the country where the design is to be protected.
Duration of the protection
Registered Community Designs are protected in all the countries of the European Union (including the Benelux) for a period of 5 years which can be renewed 4 times.
At EU level, the protection is limited to a maximum period of 25 years.
At international level, the duration of the protection depends on the country where the design is to be registered.