Industrial Design

A registered industrial design protects the appearance of the whole or a part of a product resulting from the specific features of the shape, lines, contours, ornamentation, colours, or combination thereof. Regardless of its function or way of operation, this product can be protected per-se by acquiring an industrial design registration.

An industrial design refers only to the ornamental or aesthetic aspects of a product. In other words, it refers only to the appearance of the whole or a part of a product. Although the design of a product may have technical or functional features, industrial design, as a category of intellectual property law, refers only to the aesthetic nature of a finished product, or part of it, and is distinct from any technical or functional aspects. Designs that are considered to be dictated exclusively by the technical function of a product; such technical or functional design features may be protected, depending on the facts of each case, by other IP rights like patents and/or utility models. The shape of a product or its package can also be protected by trademark registration in some jurisdictions. 

Industrial design is relevant to a wide variety of products of industry, fashion and handicrafts from technical and medical instruments to watches, jewelry, and other luxury items; from household products, toys, furniture and electrical appliances to cars and architectural structures; from textile designs to sports equipment. Industrial design is also important in relation to packaging, containers and “get–up” of products.

As a general rule, to be able to be registered, an industrial design must meet one or more of the following basic criteria, depending on the law of the country:

Novelty

The industrial design must be new. It is considered to be new if identical design has not bee disclosed to the public before the filing date, or the priority date, of the application for industrial design registration.

Originality

An industrial design is considered original if it has been independently created by the designer and is not a copy or an imitation of existing designs.

Individual character

This requirement is fulfiled if the overall impression produced by the design on an informed user differs from the overall impression produced on such a user by any earlier design which has been made available to the public earlier.

Non-functionality

The features of the industrial design that are dictated exclusively by technical functions do no receive protection .

The subject matter of the legal protection of industrial designs is not articles or products, but rather the design which is applied to or embodied in such articles or products.

The rights acquired by registered industrial design are exclusive rights, namely the owner is granted the right to prevent unauthorized copying or imitation by third parties. This includes the right to exclude all others from making, offering, importing, exporting or selling any product in which the design is incorporated or to which it is applied. The law and practice of a relevant country or region determine the actual scope of protection of the registered design.

Industrial designs are territorial in nature, which means the design rights are granted and enforceable within the geographical boundaries of the country or region where they are registered. In other words, if you have not succeeded in registering your products’ aesthetic appearance as registered industrial design in a given country, the design of your products will not be protected in that country, enabling anybody else to commercially exploit it in that particular country.

The term of protection for a registered industrial design varies from country to country, but is usually at least 10 years (although it is often longer; for example, 14 years for design patents in the United States of America, and up to 25 years for registered industrial design in Bulgaria as well as for a Registered Community Design (RCD) of the European Union. In many countries, rights holders are required to renew their design protection after five years.

Industrial design protection is territorial. This means that industrial design protection is generally limited to the country or region where you have registered your design. Hence, if you wish to have your industrial design protected in export markets you would have to make sure that protection is applied for in those specific countries.

Depending on your business needs, target markets, strategies, financial capabilities and commercial expectations, a protection of industrial designs can be acquired by 3 main ways:

• The national route – by filing a national application for Industrial Design (ID) registration for the territory of one particular country, or as many countries as necessary, with the national industrial property (IP) offices of each country of interest. For instance, in Bulgaria by filing application for Registration of Bulgarian Industrial Design with the Bulgarian Patent Office (BPO). Additionally the design applications must be in the prescribed language and the respective filing and registration fees under the national law must also be paid. This path may be very cumbersome and expensive if the number of countries is large.

• The regional route (RCD) –  when a number of countries are members of a regional industrial design system,  you may apply for a industrial design registration with effect in the territories of all member countries by filing an application at the relevant regional office. Such regional office is the European Union Intellectual Property Office (EUIPO) where applicants can acquire protection in all countries of the European Union (EU) by filing a single application for Registration of Community Industrial Design (RCD).  

• The international route (the Hague System) – provides an opportunity for protecting aesthetic features of a product through a centralised application for Registration of International Industrial Design having effect in over 80 multiple countries around the globe that are members of the Hague Agreement. The procedure is governed by the World Intellectual Property Organization (WIPO).