Design protection with or without cost

There is a European design protection that starts with the publication of the design and lasts for three years. And there is registered design protection, which can be maintained for a maximum of 25 years. And finally, there is also design protection from the Copyright Act, which is in effect for up to 70 years after the author’s death. What is the right thing to do in practice?

Unregistered European design

If you publish a new design in a catalog or at a trade fair or on the Internet on an appropriate website, you can ban others from copying the design in the EU for three years. During the negotiations on the European design, the French delegation complained that in the fashion industry it was too time consuming to register every dress and pullover in the office to prevent the design from being copied. Since fashion is usually short-lived, it was agreed that publication alone is sufficient to achieve so-called unregistered design protection. Practically speaking. But one must make sure that one can later prove what was published, when, where and how. You can find more details at https://euipo.europa.eu/ohimportal/de/unregistered-community-design.

Registered European design

This proof is much easier with a registered European design. With a registered design, one can refer to the official publication to prove his right. In addition, you can gradually extend the protection up to 25 years. This is a service of the Office for Harmonization in Alicante (EUIPO). There it will be checked whether the submitted pictures, drawings or photos show the object well and are suitable for publication. Then the design is officially published and no one can later claim that they are innocent because they did not know the design. You can find more details at https://euipo.europa.eu/ohimportal/de/designs.

International design deposit

You can also register your design in an international register. Then the protection applies to all states named at registration. Meanwhile, more and more countries have acceded to the Hague Model Convention, and one can now also mention the EU, USA and China for example. A prior national design application is not required. You can read more about this on WIPO’s website https://www.wipo.int/hague/en/#

copyright

Copyright provides the longest protection – and at no cost. But copyright protection exists only for very special works. And the author or his legal successor must later prove that it is such a special work. It is not a problem if the work is exhibited at the Museum of Modern Art in New York. But once a design is published, one usually does not know how the experts will judge the work in the future. Therefore, a registered design is the safest way. You can read about the use of copyright here: https://designerwissen.allianz-deutscher-designer.de/designerwissen/urhebersrechter- celebration of use /

Period of deferral and priority

Once a design has been published, it is no longer new and can no longer be protected as a registered design. However, the author himself has the right to register his design within the first 12 months after its first publication. This is called the grace period.

And if design protection has been applied for in a country or region, the applicant has a six-month right to protect that design in other countries as well. If he claims the priority of the first application in the subsequent application, his own publication may not be used against him.

The German Patent and Trademark Office explains these terms to you in detail at https://www.dpma.de/designs/schutz/schutzbedingungen/index.html

Convenient access

Before publishing a design for the first time, the author should consider whether protection for three years limited to the European Union is sufficient. It should be noted that Switzerland and the United Kingdom are not part of the European Union. If that’s enough, one should document exactly how the design was released, where and when.

The author gets better protection through registered designs. He can thus protect his design in precisely the countries that are relevant to him. He can extend this protection to a maximum of 25 years by paying fees. There is even an international register where you can register your design

And if during this time it turns out that the design falls under copyright protection, the author can request protection of his grandchildren for up to 70 years after his death. However, one should not rely on this copyright protection!

Now, it would be nice if one could first enjoy the protection of the unregistered European design for three years and then register a design if the design is still relevant to the market economy. But it does not work.

A registered design must be applied for no later than the end of the one-year deferral period. DPMA gives you a more detailed overview at https://www.dpma.de/designs/designschutz_ausland/index.html

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