How are Industrial Designs Protected and for How Long?
Who is protected?
The owner of the design (often the designer but not always).
In some jurisdictions, for example in Canada, the person who pays ‘good and valuable’ consideration for the design is the owner. This might include employer/employee relationships as well as company/independent contractor situations. As always, familiarize yourself with the rules in each country of interest to you and your business.
How are they protected?
In a number of countries, industrial designs are recognized and protected under specific industrial design legislation. In the United States, ‘design patents’ are recognized and protected as part of US patent law.
However; for industrial design protection to have legal effect, most countries require registration.
An exception to this is the European Union (EU) as it recognizes both an unregistered European Community design right, in addition to a registered European Community design right. In addition, the national laws of European Union countries also provide country-specific industrial design protection.
Usually, protection is afforded against anyone who makes or sells or imports the article embodying the protected design elements or design elements that are substantially similar. Protection generally extends to those who independently create the same or a substantially similar design.
Under the Community design rights recognized by the EU, an unregistered Community design is protected against copying only, whereas a registered Community design is protected against both copying and independent creation.
For how long?
The duration varies among countries but is generally between 10-25 years either from the date of filing or the date of registration.
Unlike in the case of copyright, there is no minimum standard term of duration for industrial designs. As such, there is a fairly wide divergence among countries.
Does industrial design law allow for grace periods and priority filing dates similar to patents?
Similar issues surrounding prior disclosures in the case of patents operate as well in respect of industrial designs in most countries.
Canada and the US provide a grace period (1 year) to permit some disclosures but this may not be the rule everywhere in the world. In some cases, public disclosure might defeat the ability to register the design.