A product can often be protected by several IP rights. Many companies are unaware of this. By ‘stacking IP rights’, a company can guarantee itself a stronger exclusivity position. Below is a brief overview.
Patent law protects the invention based on its technical functioning. But a rights holder can do more. You can also protect the appearance of a product that contains the invention. The key form of protection regarding this are design rights. This form of protection covers the appearance of a product, or part thereof. Design rights are expressly not about the technical functioning. Design rights provide additional protection that is only aimed at the design.
How do design rights work?
Just like patent rights, valid design rights are subject to requirements. The appearance must be new and have its own character. In short, this means that no identical design may have been published in the period before the design application and the general impression of the design must deviate sufficiently from older models.
Design rights versus copyright
Although copyright also provides protection regarding a design, recent jurisdiction shows that registering a design is more useful. This is because the threshold for design protection is generally slightly lower than for copyright, making it easier to respond to competing third parties.
Copyright is about the question whether the design is sufficiently creative. Design rights are subject to requirements of being new and having its own character, which can be established more objectively. In addition, you only have to show your design registration, whilst you personally have to prove that the work is protected when relying on copyright.
Trademark rights can also provide a solution for the protection of a design. A product design that is so well-known that the public recognises the origin of the product in the design is, under certain conditions, eligible for shape mark protection.