What constitutes design infringement?
The owner of the design right can take action against a competitor for launching a product that creates the same overall impression as the owner's registered design. The product must differ substantially from the owner's design. The designer's scope for artistic licence in creating the design is of the essence here. For instance, a designer may need to make allowance for the technical requirements of a product when designing it and may therefore have limited options when designing the shape and appearance of the product.
What is a design's scope of protection?
The scope of protection of a design is contingent on the following factors:
- How unique is the design? In other words, to what extent does this product differ from previously registered designs?
- Does the technical function of the product dictate its overall design? For instance, if certain product features are necessary for the technical function of the product, these features will not be protected by the design right. An exception to this rule are the technical elements of a modular system.
Timely intervention in the event of design infringement
The Benelux and EU patent authorities do not check whether design applications potentially conflict with previously registered designs. To prevent design infringement, we recommend closely monitoring the market and engaging our services at the earliest possible stage of design development.
Advice on design infringement
If you are interested in us advising you, please contact one of the NLO Shieldmark attorneys here experts
