Design protection: Patents aren’t the only IP protection out there

If you have a great idea, you immediately think “how can I protect it?” We need to look at what exactly our innovation is. If it is an original concept, such as a cure for malaria, then that is something we should patent. If however it is an enhancement of an existing product then we can protect it equally effectively by applying for design protection. This is a potentially cheaper and quicker option than patent protection. Please note this is a vast and complex field. It is well worth taking advice if your business takes you into this sphere.  How does it work? A design covers the form and outside appearance of the item. A design needs to be produced by an industrial process. Designs can be protected in two ways:

       
  1. Aesthetic. These are designs which have an ornamental or aesthetic appeal solely to the naked eye.   This could be the shape or surface or the colour, the pattern, the ornamentation and/or the configuration of these elements. Jewellery would be an example.  You have 15 years of protection in this category.  Your design needs to be original.
       
  1. Functional.  You can protect shapes, patterns and/or configuration necessary to the functioning of the article.    A screwdriver with an ergo-dynamic handle is an example of functional design.  Functional designs get protection for 10 years. These designs need to be new and not commonplace. The more unique they are, the better the legal protection.

What options are available and how does design protection compare with patent protection? You can, in the right circumstances, cover both aesthetic and functional designs. This will involve two sets of costs should you go this route. One other attractive feature of design protection is that the product can be on the market for six months before applying for design protection. With patents, you must file before the item is launched. It is possible and sometimes desirable to apply for both patent and design cover.  Designs are cheaper and faster to obtain versus patents. They are also simpler to enforce than patents and you are more likely to get design cover than patent cover. © DotNews, 2005-2013. This article is a general information sheet and should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice.

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