A design patent is a form of legal protection granted to the visual design of hand-made and industrial products.
The two-dimensional or three-dimensional appearance of all or part of a product may be protected as a design if it is novel and possesses individual character.
A design is deemed to be novel if no identical design or one differing only in immaterial details has been made available to the public before the date of filing.
A design is considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public before the date of filing. In assessing individual character, the degree of freedom of the designer in developing the design is taken into consideration.
What is a design?
A design is the two- or three-dimensional appearance of a product or a part thereof. It may result from lines, contours, colors, shape, surface structure or materials of the product.
What counts as a product?
A product can be any industrial or hand-made object, including packaging, equipment, graphic symbols and typographic typefaces. Parts of a complex product may also count as products. Computer programs do not count as products.
What are the requirements for a registration?
A design must be novel and possess individual character to be registered.
- Novelty: Prior to the filing date, no identical design or one differing only in immaterial details may be made available to the public. Detrimental to novelty are, among others, publication, exhibition and use in trade.
- Individual Character: A design is considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public before the date of filing. In assessing individual character, the degree of freedom of the designer in developing the design is taken into consideration. It may additionally depend on the number of similar designs already in existence.
What kind of protection is obtained through design patent registration?
By registering a design patent, the design patent owner can take action against the use of his design by others. In case of design infringement, the design patent owner may be entitled to injunctive relief and destruction of the products in question, as well as damages.
How long is the period of protection?
The protection for a registered design patent is 5 years. By applying for renewal and paying the renewal fee, this protection can be extended for 5 years at a time for up to four times. The maximum period of protection is 25 years.
The protection for a non-registered design is 3 years after the design has first been made available to the public.
What are the costs of a design patent registration?
The costs depend on where a design patent is registered. For example, the registration fee for a design patent at DPMA is 60 Euro.
In addition to the registration fees there are also attorney’s fees for preparing and executing the design patent application and for other services related to the design patent.
Where can a design patent be registered?
Design patents can be registered at the DPMA (German Patent and Trademark Office), the EUIPO (European Union Intellectual Property Office), the WIPO (World Intellectual Property Organization) as well as the national offices. At LermerRaible, we file Swiss design patent applications at the IGE, the Swiss Federal Institute of Intellectual Property, as well.
Can an already published design still be registered?
There is a so-called grace period, which is 12 months before the filing date of a design patent. If a design is made available to the public by the applicant themselves within those months, it is not detrimental to novelty.
- National and European and international design applications before to the DPMA, EIGE, EUIPO and WIPO
- Prosecution of appeal, revocation and cancellation proceedings before the DPMA, EIGE, EUIPO, BPatG and LG/OLG
- Enforcement of design rights before all LG and OLG, in court and out of court
- Expert opinions on the validity and infringement of designs
- Design monitoring