What is a design?
A design is a title that protects intellectual property creations relating to form; in other words, the appearance of the whole or part of a product that comes from the characteristics of its lines, contours, colours, shape, texture or materials of the product itself or its ornamentation. Design creations refers to both two-dimensional creations (marks) such as a pattern, or three-dimensional shapes (models) such as a shoe.
What rights does a design confer?
Protection of registered and unregistered designs.
Registered designs: 5 years’ protection from the time of application to a maximum of five years. Unregistered designs: 3 years’ protection from time of its disclosure to the public. The design gives the owner the exclusive right to use it and to prevent its use by others without their consent.
Condition of protection.
For community and national designs (in Spain):
Newness: A design is considered new if, before the date of application, no identical design has been made public (i.e. differing only in insignificant details).
And Distinctiveness: Distinctiveness is different from the originality requirement for copyright protection, and requires that the design produce a different overall impression on the user.
For international design:
And Originality: Original means the design has been prepared by its author independently without any copying or imitation of another previous design. The author conceived the design with their own personal and particular touch.
A utilitarian function: In some countries (Australia, Benelux, Canada, USA, Brazil or Mexico, for example.) a design applied to a product is required to have a utilitarian function, that is, to serve a purpose or to be a tool. A design applied to an article without a utilitarian function that is merely ornamental or decorative is not protected by industrial design law.
Scope of protection.
National: protection across the country (check country by country).
Community: protection in the 25 countries of the European Community through a unified registration procedure (application, rate, etc. processed through the OHIM).
International: protection in the territories of the signatory states of The Hague. Allows protection for industrial designs to be obtained in a set of states by a single deposit made at the International Bureau of WIPO, without an earlier national registration. It is a single application that results in multiple national registrations. In this case the design is subject to national laws.