Design right for baby ear protectors: when does infringement occur?
Your product design is protected — but how far does that protection extend?
As an entrepreneur, you invest time and money in developing a distinctive product design. A design right offers you legal protection against competitors who bring a similar design to market. But when does an infringement actually occur? A recent ruling (7 September 2026) in the hearing protection sector shows how courts assess this question and what lessons entrepreneurs can learn from it. (source: ECLI:NL:RBDHA:2026:25842).
What is a design right and why is it valuable?
A design right protects the appearance of a product: its shape, lines, contours, colour or texture. It therefore does not concern the function or the technology behind a product, but solely how it looks. For businesses that use their product design as a distinctive brand feature, design right registration is therefore an essential tool.
Once you have registered your design, you can take action against third parties who place a product on the market that creates the same general impression on the so-called informed user as your registered design.
Two competitors, one market: the dispute at a glance
In the market for hearing protection for babies and young children, two players clashed over design. One party — the holder of a registered design right for its ear muffs (hearing protectors) — sought a court injunction to prohibit the sale of the other party’s ear muffs. The issue at stake: would consumers perceive both products as visually similar, or do they give a distinctly different impression?
The design right holder highlighted three visual features that characterised its design:
- The flat, organic shape of the ear cups;
- The two-part strap construction by which the product is worn around the head;
- The specific angle between the headband and the neckband.
The competitor contested that its product constituted an infringement and argued that the visual differences were so substantial that there could be no risk of confusion.
The crux of the design right dispute: the synthetic comparison
Anyone wishing to prove a design right infringement in court must do more than simply draw up a list of similarities. The law and case law require a so-called synthetic assessment: the court examines the designs as a whole and forms an overall impression, rather than comparing individual features point by point.
This distinction is crucial. An analytical list of similarities may appear convincing on paper, but if the products as a whole convey a different character, there is no infringement. The benchmark is always the perception of the informed user: someone who is familiar with the product category and has an eye for design details, but who is not a designer or an expert.
Technically determined features do not count
An important principle in design law is that only technically determined features fall outside the scope of protection. After all, design law protects the designer’s creative, aesthetic choices — not the technical solution necessary for a product to function.
In this dispute, the angle between the headband and the neckband played a central role. The design right holder regarded this angle as a characteristic, protected feature of its design. The court took a different view. The design right holder’s own communications — including product information and marketing materials — showed that the angle in question was, in fact, dictated by the technical function: after all, the product must remain on a baby’s head and cover the ears correctly. As the angle was determined solely by technical considerations, this feature could not be invoked as a protected element of the design.
Practical point for businesses: As a design right holder, be aware that you may limit the scope of your protection by emphasising the functional necessity of certain design choices in marketing materials or technical documentation. Also present aesthetic features as such.
The visual differences are decisive
Following the exclusion of the angle as a protected feature, the court compared the remaining visual features side by side. The differences were substantial:
- Shape of the ear cups: Whilst one design has a rectangular shape with rounded corners, the other features a distinctly oval, organic bean shape; a clearly different shape.
- Connecting pieces and headband integration: The first model has recognisable square connecting pieces between the headband and the ear cups; in the other model, the headbands are seamlessly integrated into the ear cups themselves.
- Proportions and finish: The ear pads of the second model protrude noticeably further, and the headband is narrower in design.
All these elements taken together – and assessed as a whole – led to the conclusion that the informed user perceives the two products as substantially different. There was therefore no infringement of the design right.
What does this mean for your business?
This case offers valuable insights for any business operating at the intersection of product design and competition:
- Register your design right in good time and ensure a clear description of the aesthetic features you wish to protect.
- Be aware of the scope of protection: not all visual features are automatically protected. Technically necessary elements fall outside the scope of design right protection.
- Document your design process: record which choices are aesthetic in nature and which are technically driven. This could prove crucial in any subsequent proceedings.
- Weigh up the litigation risk: in IP disputes, legal costs can mount up considerably. Thorough preparation and a realistic assessment of your chances are essential.
Questions about design rights or product protection?
Do you have questions about protecting your product design, or would you like to know whether a competitor is infringing your design right? Our specialists in corporate law and intellectual property will be happy to advise you.
Frequently Asked Questions (Q&A)
What is a design right and how does it differ from a patent, trade mark or copyright?
A design right protects the appearance of a product: the shape, lines and contours as seen by the consumer. A patent protects a technical invention, whilst a trade mark protects distinctive signs such as a logo or name. Design rights are specifically intended for the new visual appearance of products. Copyright in a design arises automatically (without registration) if free and creative choices have been made (sometimes referred to as bearing the creator’s personal stamp) and it is an original design, i.e. new compared to what already existed.
How do I know if a competitor is infringing my design right?
The key question is whether the competitor’s product creates the same overall impression on the so-called ‘informed user’ as your registered design. The product is assessed as a whole, not in terms of individual features. A solicitor specialising in intellectual property can help you assess this.
Are all the visual features of my product protected by design rights or copyright?
No. Features that are determined solely by technical considerations — that is to say, those necessary for the product to function — fall outside the scope of design rights protection. Only aesthetic, creative design choices are eligible for protection. The fact that a design may be technically determined does not automatically preclude copyright protection, provided the creator still had scope for free and creative choices. This is relevant to the overlap between design rights and copyright.
What are the costs of design right proceedings?
This varies, but in intellectual property cases a special scheme for legal costs applies (Article 1019h of the Code of Civil Procedure), under which the losing party must reimburse the winner’s actual legal fees. These costs can run into tens of thousands of euros. It is therefore essential to carry out a thorough risk assessment in advance.
What should I do if I suspect that my product infringes another party’s design right?
Act swiftly and seek professional advice. A specialist solicitor can assess whether the scope of protection of the competitor’s design right actually covers your product, and what steps you can take to defend your position or adapt your design.
How long does a design right last?
A registered design right is valid for five years from the date of filing and can be renewed for up to 25 years. Timely renewal is essential to maintain protection. File a new design in good time, i.e. within 12 months of its first disclosure.
