Trade marks and design rights
Design rights have a lot in common with trade marks and can be used effectively in conjunction with, or instead of, trade marks to achieve broader protection. Design rights can cover logos, decoration or shapes, for example protecting logos that are not distinctive enough to be registered as trade marks or protecting shapes that can be difficult to protect under trade mark law.
A product may have trade mark and registered designs operating alongside each other to protect the overall brand. Examples might be a cheese in a special shape, a perfume bottle, or distinctive stitching on clothing. These can be difficult to obtain trade mark protection for but add value and recognition to your goods and brand.
There are limitations to design rights when compared to trade marks. For example, time limits on registering to safeguard novelty and the end of protection after 25 years. But they also have some advantages that make them a useful addition to your IP armoury.
Important advantages
Unlike trade marks, design rights do not need to be ‘distinctive’ (although they do need to be novel and have individual character). Also, protection is not limited to certain product categories. For example, for a UK or European Union trade mark (EUTM) the basic fee only covers one class of goods/services. To cover a wide range of goods or services, the extra fees can be substantial. In contrast, a registered design provides protection irrespective of the actual product class, so, for example, the design right could protect a car and a toy car despite their differing design classes.
A registered design application can comprise more than one design, which is referred to as a multiple design application. The advantage of filing such multiple design applications is a reduced cost compared to individual, single applications. The relatively low costs for further applications in a multiple design application enables companies to protect several variants of a design. Each design in the multiple design application becomes a separate IP right upon registration, and therefore can be enforced, licensed, renewed and assigned separately. In comparison, an EU trade mark application is restricted to a single mark and there are no cost advantages in filing multiple trade mark applications at the same time.
Details of an EUTM application are available to the public within a few days of submitting the application, but for a design it is possible to request deferment of publication for up to thirty months, depending on the jurisdiction, which can be useful to avoid competitors becoming aware of designs before they are launched.
Furthermore, unlike trade marks, the validity of a design right is not dependent upon the design being used commercially, e.g. a product being put on the market.
Logos, patterns and prints
One area in particular where design rights have the potential to be used effectively as a complement to trade marks is in relation to logos. It is possible to secure design rights for logos that are not distinctive enough to be registered as trade marks. For example, this might be particularly useful in case of the get-up of a product or its packaging, or for app icons and other graphical symbols.
Design rights can also cover repeating patterns of trade marks, like those on Louis Vuitton bags, as well as protecting surface patterns used on textiles, wallpaper or other products.
Shapes
The shape of a product can be difficult to protect under trade mark law. You need to supply a great deal of evidence to show the unique and distinctive nature of your shape or prove that you have acquired distinctiveness through use. The EU courts have, in the majority of cases, invalidated attempts to trade mark shapes, including the shapes of the iconic London taxi, Land Rover Defender vehicles, and Nestle’s Kit Kats chocolate bars. Design rights fill this gap in protection.
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