Design rights and drawing rights

Design rights are intended to protect drawings and designs and are a branch of intellectual property law. These rights focus on the physical design of a product. Design rights can apply to all kinds of utensils or motifs (photographs/drawings) on a design. Examples include shoes, lamps, furniture, clothing designs, tools, packaging and household items.

What is design right?

Design right is an exclusive right within intellectual property that protects the design of the actual creator or designer of an object. This right protects objects for a fixed period of time and within selected countries or regions. Design rights are officially known as drawing and model rights. The right gives the “creator” an exclusive right to applied art and only applies to new industrial designs and applied art.

What conditions must a design meet to be protected under design rights?

To be protected under design rights, a design must meet two key conditions: it must be new and have its own character. This means that the design must not have been made public before registration (novelty) and that it must give informed users a different overall impression from existing designs (own character). Technical characteristics are not taken into account. It is really about the external design. Proper registration prevents disputes, so have your design registered correctly and in good time.

Applying for design rights in the Benelux and EU

To enjoy design protection under design rights, a drawing or model must meet certain conditions. For example, the model must be new, which means that it must not have been made publicly available before the registration was applied for. It is therefore important to register the model. Design registration in the Benelux is done through the Benelux Office for Intellectual Property (BOIP). To offer products outside the Benelux, design registration must be applied for through European design law, the registered Community design. Design rights registered under this flag are immediately valid for all EU Member States.

Design registration, grace period, design protection

We consider a design to be new if no identical design has previously been made available to the public. According to design law, a design is also considered identical if new and existing designs differ only in insignificant details. For a design that has previously been made public but for which no design registration has (yet) been applied for, there is a grace period. The grace period is twelve months. During this period, design registration can still be applied for without the design losing its novelty.

Design rights and patent rights

Design rights only relate to the appearance of a design. Design rights are not intended to cover the technical functioning of a design. The technical functioning is covered by patent law. Once design rights have been registered, others are prohibited from using the registered design commercially. If someone infringes design rights, the rights holder can take legal action.

Design right infringement and legal action

In the event of design right infringement, it is examined whether the other design creates the same overall impression on users as the original design. If there is infringement, the right holder can claim compensation and a ban on the use of the infringing design. The term of protection of design rights is five years. Design rights can be renewed four times for a period of five years. The maximum term of design rights is therefore 25 years.

Why register a design?

European design rights protect unregistered designs for three years and registered designs for up to 25 years. The purpose of registration is to record the filing date and the owner(s). There is no doubt about this, unless it is a fictitious owner or not a new design. A design right can be registered with the Benelux Design Office (BBIE), the European Design Office (EUIPO, formerly OHIM), the International Design Office (WIPO) or a national design office.

How can I apply for design rights?

You can apply for design rights by registering your design with the Benelux Office for Intellectual Property (BOIP) or, for broader protection, with the EUIPO for a Community design. The application is submitted digitally and requires clear images of the design and a brief description. Please note: registration must take place before you make the design public, otherwise the novelty requirement will lapse. So choose the right moment and check carefully that your design meets the conditions. A mistake in registration can undermine your rights, so it is best to have your application checked by a legal expert. This will strengthen your position in the event of infringement.

Copyright, trademark law and design law

The right to creations and designs has various variants, all of which fall under intellectual property. Examples include copyright and trademark and design law. Copyright can also play an important role alongside a (figurative) trademark and/or design law. Another basis is slavish imitation, which is an act of unlawful conduct.

Although copyright and design rights are very similar in essence, there is one important difference. Copyright offers protection without the need for registration. Copyright automatically takes effect from the moment of creation. Design rights only arise after registration. This right offers a broader scope of protection.

Another right under intellectual property law is trademark law. Trademark law applies to the identity of a company, product or brand. Utensils cannot be protected by a trademark, but only by design rights.

What does design protection cost?

There are costs associated with registering a design. The cost of design protection depends primarily on the area in which the design registration is to apply. The costs of design registration in the Benelux start at €150. Single European registration of a design via design rights costs approximately €350. This generally makes European design registration more attractive. For a slightly higher fee, a design is protected in all EU countries for five years. Renewal is possible for up to 25 years, in periods of 5 years, at increasing rates. This is therefore a relatively small investment with great legal value. Are you unsure about the right route to take? Seek good advice.

What a design right solicitor does for you

A design right solicitor specialises in the legal field of design and model rights. A solicitor advises and represents clients in disputes concerning the visual design of industrial products. A design right solicitor at Fruytier Lawyers in Business conducts EU searches for designs or drawings. We can take care of design registration in the Benelux, the European Union and at a broader international level.

The design can relate to a wide range of items: the shape of clothing (fashion), toys, all kinds of storage furniture, the design on packaging, the shape of packaging, but also the reduction of a cruise ship to a toy boat or the appearance of a game (toy law).

Need to engage a design right solicitor? Call us!

Is the question whether the actual creator is the rightful owner of the design or whether the client is the rightful owner? Is there an infringement or counterfeiting (near imitation)? Are you accused of imitation? Feel free to contact us.

Do you have a design or drawing that needs protecting? Ask for advice and email or call us on +31(0)20 52 101 30, without obligation. We are constantly working with design rights and will quickly assess your options and be happy to help you file a design registration.