According to the statutory definition, an industrial design is a new and original shape, configuration, pattern or ornamentation of a product, or part of a product, particularly in terms of its lines, contours, colours, texture or material.
The methods and means of shaping the product are given as examples.
A product can be any industrial or handicraft item, including parts intended to form a complex product, packaging, the external appearance, graphic symbols and typefaces. However, it excludes computer programs.
This open catalogue of product shapes is an appropriate approach, especially given the emergence of new design uses in the digital environment, and the accelerating pace of technological progress and artificial intelligence development.
New product designs
The essence of industrial design is the creative development of new product forms. Often, these products combine art, craftsmanship, industry and technology. They are intended to satisfy both material and aesthetic needs. Designers focus on creating original designs and setting new trends. These products embody the marriage of function and form.
Registering an industrial design emphasises a product’s attractive appearance and is one of the main factors influencing consumers’ purchasing decisions. Design contributes to the development and diversity of products on the market, giving manufacturers a significant competitive advantage and increasing the product’s value.
To qualify for protection, your industrial design must be new and have an individual character. This means that it must differ from the overall impression given by previous designs and be new. It must also comply with standards of public order and morality.
What does industrial design protection cover?
It covers the external appearance of a product. By obtaining industrial design rights, the aesthetic features of a product are protected. Designs can be three-dimensional, such as shapes, or two-dimensional, such as graphic symbols, graphical user interfaces (GUIs), logos, typefaces and fabric patterns.
Industrial designs are used in various sectors of the economy for a wide range of products, including packaging, containers, furniture, household goods, lighting equipment, jewellery, electronic devices and textiles. These sectors are grouped into 32 Locarno classes (the international classification of industrial designs).
Industrial designs are used in a variety of sectors for an array of industrial and handicraft products, including packaging and containers, furniture and household items, lighting equipment, jewellery, electronic devices and textiles. These sectors are grouped into 32 Locarno classes (the international classification system for industrial designs).
Which features are not protected by an industrial design?
Registration of an industrial design does not include features of a product that result solely from its technical function, nor features that must be reproduced in exact form and dimensions to enable mechanical connection or interaction with another product. In a specific physical product, purely visual features form an integral part of the technical and functional features. These features are comprehensively considered at the design stage, but industrial design protection only covers the visual features of the product that do not result from its technical function. This exclusion also applies to features of a product that must be faithfully reproduced to enable mechanical connection to another product. However, this rule does not apply to designs for modular systems that are designed as a whole.
Will the intended use of the product being registered be examined?
Whether the registered product is manufactured or used, or can be manufactured or used in an industrial or craft manner, will not be examined.
Whether an industrial design discloses the appearance of a product, or part of a product, will be examined in light of the design itself, insofar as it explains the nature of the product, its intended purpose or function, and the products in which the design is intended to be incorporated, or applied.
How long does industrial design protection last?
It can last for a maximum of 25 years, divided into five-year periods.
What systems are there for protecting industrial designs?
The answer to the question ‘How can an industrial design be protected?’ can be found by analysing the possible protection systems:
1. The national system, i.e. filing an industrial design application with the office responsible for industrial property protection in a given country. The application is filed in the official language of the relevant country and the applicable fees are paid. In many countries, it is necessary to act through a local representative when filing an application; this is usually equivalent to a Polish patent attorney.
2. The second option is the regional system, which involves filing an industrial design application with the European Union Intellectual Property Office (EUIPO) in Alicante, Spain, in order to obtain protection throughout the European Union on the basis of a single application. Other regional industrial property offices where applications can be filed include the Benelux Office for Intellectual Property (BOIP), the African Regional Intellectual Property Organisation (ARIPO), and the Organisation Africaine de la Propriete Intellectuelle (OAPI).
3. The third option is the international system, i.e. filing an industrial design application with the International Bureau of the World Intellectual Property Organisation (WIPO).
Such registration makes it possible to obtain protection in all or the specified countries that are parties to the Geneva Act of the Hague Agreement.
What are the benefits of registering an industrial design?
Registration gives the owner the exclusive right to use the design for commercial or professional purposes within the territory of protection. For example, this could be the territory of the Republic of Poland or an EU Member State.
What constitutes an infringement of industrial design rights?
Registering an industrial design enables the owner to take action against the following:
- manufacturing a product containing a protected industrial design without the consent of its owner is unlawful.
- placing a product containing a protected industrial design (or to which the design has been applied) on the market without the consent of the owner is also considered unlawful.
- selling a product containing a protected industrial design without the consent of its owner is also unlawful.
- advertising a product containing a protected industrial design without the consent of the owner is also unlawful.
- importing or exporting a product containing a protected industrial design without the consent of the owner is also unlawful.
What should you bear in mind when preparing an application for an industrial design?
How should a design be presented?
The applicant should disclose all features of the design in a comprehensive manner.
How can an industrial design be protected? An industrial design can be presented in the form of:
a) drawings;
b) photographs;
c) other types of illustration accepted by the Office.
What are design views?
Design views are visual representations of a design. To present the features of an industrial design, a maximum of seven views may be submitted, including: front, top, bottom, right-hand, left-hand, rear, enlargements, alternative positions, exploded views, partial views, cross-sections, sequences of views, combinations of illustration formats, and perspective views. If all the features of the industrial design can clearly be seen in the provided illustration, it is sufficient to submit one view.
Examination of industrial design views
The expert will check that the views refer to the same design, i.e. the appearance of one product or part thereof. It is the applicant’s responsibility to submit a correct and complete application, including the design. Once an industrial design has been registered and published, the Office is not entitled to supplement any deficiencies relating to inconsistent views.
No text or symbols.
Drawings should not contain any elements that are not an inherent part of the industrial design itself, such as explanatory text, numbers, arrows, lines or symbols.
One view:
Each drawing must contain only one projection of the industrial design.
Enlarged views
Enlarged projections should be uploaded as separate drawings.
Consistency:
To exclude an element from registration as an industrial design, ensure it is excluded from all projections. To exclude part of a product from protection, use broken lines, blurring or colour shading to indicate this exclusion.
Overall view:
If you submit views of disassembled products or articles that form a set, you must also submit a view showing all the assembled parts or elements of the industrial design.
Ornaments
If you want to protect a two-dimensional ornament or surface pattern, only submit those elements, not a drawing of the industrial design to which it is applied.
Single colours and colour combinations
A single colour can, of course, be an element of an industrial design, but it does not comply with the definition of a design in itself because it does not constitute the ‘appearance of the product’.
Colour combinations may be accepted if it can be determined from the contours of the representation that they refer to a product, such as a logo or graphic symbol in Class 32 of the Locarno Classification.
Music and sounds
Music and sounds do not constitute the appearance of a product and are therefore not compatible with the definition of an industrial design. However, a graphic representation of a musical composition in the form of a musical score would qualify as a design if filed under other printed matter (class 19-08) or graphic symbols (class 32) in the Locarno Classification.
Photographs
A photograph constitutes the appearance of a product and therefore complies with the definition of an industrial design, regardless of what is revealed. The product may be writing paper, correspondence cards, announcements, or other printed materials from class 19-01 or 19-08 of the Locarno Classification, or any other product to which the design is applied.
Conclusion:
Registering an industrial design requires the preparation of an application for industrial design registration, as well as the preparation of illustrative material that allows the scope of protection of the industrial design to be determined. Knowledge of the conditions for registrability will help answer the question ‘How do I register an industrial design?’ By working with FGGH IP patent attorneys, you can be sure that your design is properly protected and that you have the right protection strategy for your business.
Author:
Alicja Kicińska-Fujawa
