By Paul Cosmovici
It comes as no surprise that 2022 brought about a fiercer competition on the business market, and with the continuous rise of startups all over the world, product designs can no longer be plain and uninspired, they really need to have that “wow” factor to catch the eye of customers. With that in mind, companies invest large amounts of money into branding and creating attractive designs and packaging in their quest for brand recognition. In addition to brand recognition, companies seek to maintain their relevance on the market, reach new customers, obtain a profitable return of their investment (ROI) and establish a competitive edge. And, if they are putting all this hard work and resources into their product, why not boost their success chances and make sure their product`s design is protected?
What are industrial designs?
Standing at the crossroads between arts and technology, industrial designs seek to merge and satisfy both aesthetics and functionality when incorporated into a product in order to make the given article appealing to the customers, adding commercial value whilst increasing its marketability. Legally speaking, an industrial design is a form of intellectual property (IP) protection, and it refers to the ornamental and/or aesthetic aspects of an article and can have 3D features, that give a special appearance to a product, such as a distinctive shape or configuration or 2D features, like patterns, colors, lines etc. Basically, industrial design rights protect your company’s visual design(s).
These designs can be found in anything, and they vary from the shape of a car or a piece of furniture, a phone, a perfume bottle, a graphical user interface (GUI), graphic symbols, logos, the interior and setup of a shop or restaurant, jewelry, containers, household items, textiles and the list can only continue. Either way, it is all a matter of branding.
How can industrial designs be protected?
Thing is that once a design, as some of the ones mentioned above, proves successful and is very well welcomed by the public, competitors will try to replicate or copy that design to reap some of benefits of the already acquired notoriety on the market, so the stakes are high in terms of registering industrial designs to secure and protect the creative elements that are key to the market success.
To protect industrial designs, they need to be new and original, meaning that the given designs need to differ significantly from other existing designs and that there are no identical or similar designs already registered. In addition to that, the design must not be offensive, must have a unique character and must not be solely dictated by the function of the product.
It is crucial to know – especially if you are new to this – that it is very important when filing an application, to ensure your timing is right so that your design is still eligible for protection. What this means is that the application needs to be filed before publicly disclosing the design to ensure that it does not lose its originality and novelty feature.
However, in the event that the industrial design has been made available to the public or leaked, you risk it becoming part of the public domain, unless, of course, you want to register that IP asset in one of the countries that allow for a so called 6 to 12 months “grace period” when you can file even after disclosure. Granted for a duration of at least 10 years, varying from one country to another, protection is usually time limited, and, in many countries, the total duration can be divided into few successive renewable periods. Note that industrial designs are territorial hence why their durations varies and why these rights are limited to the given country where you want to file for protection.
At European level, designs can be registered with the European Union Intellectual Property Office (EUIPO), accommodating a protection system that suits all types of enterprises, the procedure being relatively inexpensive and being granted exclusive rights for that design and can prevent third parties from using it unauthorized, anywhere in the European Union (EU) for a period of up to 25 years. Moreover, the same regulation also provides for designs unregistered in the community that, under given circumstances, could also benefit from protection without being priorly registered with the EUIPO.
What are the advantages of protecting your company`s industrial designs?
Of course, as entrepreneurs, we would all want to believe that our product, of whatever nature, is being chosen by consumers because it is well executed, or it tastes great or it can help us look better, feel better or for whatever other reasons, but the truth is that what really sells is the design of the product, from that very first customer interaction with your brand. This one of the reasons why your company needs to integrate, as part of the business strategy, a strong portfolio of IP assets, including designs, besides protecting trademarks, copyrights, or patents (if any). So, what is in for your business?
Besides living at the edge of Web3, having have had the pandemic experience and being at the brink of a new emerging market in the metaverse, what 2022 and the years to come are announcing, is a major shift for companies, regardless of their size and operating industry.
In this context, there is already visible a huge boom in the value of IP assets amongst which designs are also in the limelight, being increasingly more recognized for their potential to considerably contribute towards:
(1) obtaining a safe ROI,
(2) supporting creativity and innovation,
(3) strengthening brands and building up notoriety,
(4) creating a positive image of the company`s products and in turn, increase the market value of both the company and the given products,
(5) expanding the business by selling or licensing designs rights to other companies,
(6) and perhaps most importantly, guaranteeing that you have exclusive rights over the designs and that you can stop any other third party that might try to commercially exploit your industrial design assets.
Success of a product or service is massively influenced by appearance, the 21st century consumers are certainly driven by aesthetics, sometimes even disregarding functionality. As a matter of fact, to ensure their business survival and competitive edge, companies must create a memorable brand and iconic products that stimulate consumers` behavior, and thus entrepreneurs are encouraged to take more risks and invest into a strong branding strategy and marketing campaigns for which designs are incremental, inasmuch as their safeguard.
About the author:
Paul Cosmovici is Managing Partner at Cosmovici Intellectual Property, European Trademark Advisor and member lawyer of the New York and Geneva Bars. He has experience in the field of Intellectual Property strategy, getting involved in commercial transactions, extensions of brand portfolios and in the protection of IP assets for multinationals, but also for start-ups.