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Learn more about the full extent of registered design protection available for brands to keep your IP safe

Registered designs may seem like they only apply to physical items, but they can also be used to safeguard intangible assets, like logos, packaging, and even store layouts. When combined with trade marks, they form a powerful cornerstone in your legal strategy that protects your brand from imitators.

Businesses generally focus on securing trade mark protection for their brands and do not often consider registered design protection. However, there are many circumstances in which registered designs can be used to supplement trade mark protection, and whilst not a replacement for trade mark protection, design registrations can be used as part of a wider bundle of protection for a business.

 

1. Which goods do registered design rights protect?

A registered trade mark is granted in respect of the goods and/or services listed in its specification. If a business wants to stop a third party from using an identical or similar mark in respect of goods and/or services that are not covered by or similar to those in its trade mark’s specification, then it has to also show it has reputation. This is an additional evidential burden.

Since the protection granted by design registrations is not restricted to any specific goods, a registered design can provide very broad protection for a logo or graphic symbol (for example). If registered as a design, that logo can be enforced against a third party who uses the logo on a commercial basis in relation to any product.

Registered designs should therefore be considered whenever any new logos or graphic symbols are being developed, since they can extend protection beyond the goods covered by an associated trade mark application.

2. Do logos and software icons need to be distinctive to qualify for registered design protection?

Distinctiveness is not required, but originality is

It is not necessary to show that a logo or software icon is distinctive in order to obtain registered design protection. Rather, it is only necessary to show that the design is new (i.e. the design has not previously been disclosed to the public) and that the design possesses individual character (i.e. the design produces a different overall impression from other designs on the market).

This can be a more lenient test than that of distinctiveness, such that it may be possible to use registered designs to protect logos and other designs that would be refused if made the subject of a trade mark application. In turn, a registered design can provide some degree of protection for such a logo until the business has used that logo to a sufficient extent for the logo to acquire a distinctive character.

3. Why do registered designs give you more flexibility than trade marks?

As registered designs are not subject to any use requirements, they provide you with flexibility

Unlike trade mark registrations, a registered design cannot be challenged simply because it has not been put to genuine use by the owner of the registration. It is therefore possible for logos and packaging designs to enjoy protection for up to 25 years, irrespective of whether the logos or designs are ever used in trade.

Registered designs can therefore be used alongside trade mark registrations to protect alternate versions of logos and packaging designs that have not yet been put to commercial use and that may not be used within the next 5 years.

4. How long does it take for a design to reach registration?

It’s quicker than you might think. Designs can reach registration within 2-4 weeks 

In the UK and EU, applications for design registrations do not undergo substantive examination. Accordingly, provided that all necessary formality requirements are met, a design application can progress to registration very quickly, generally within 2-4 weeks of filing, and sometimes even more quickly.

This means that new logos or packaging designs can be granted protection well before an associated trade mark application, providing trade mark owners with the ability to challenge use of a conflicting logo or design by a third party whilst the trade mark application proceeds through the examination process.

5. Can a registered design be kept confidential until launch?

Publication can be deferred. Your design can stay under wraps until you are ready for the big reveal

If you're working on a new logo or packaging design and need to keep it confidential, but also want the peace of mind of having a filing date, you can file a design application and request deferred publication. This results in the protection of a filing date while keeping your design under wraps until you're ready to reveal it.

This will ensure that the filing date of the design is fixed, but unlike a trade mark application, the subject matter of the design application will not be made available to the public until a request for publication is submitted by the design owner or the end of the deferment period is reached. If a trade mark application were to be filed, that mark would be made available to the public within a matter of days from the filing date, thereby potentially detracting from a future launch event. By filing a registered design, it is possible to keep the subject matter of the design confidential until the business is ready to go public with a launch.

6. Is it possible to file multiple design applications?

Multiple design applications are possible

In the UK and EU, it is possible to file a multiple design application, i.e. a single design application protecting numerous different designs. To some extent this is similar to filing a “series” trade mark application in the UK, i.e. protecting different variations of the same mark in a single application. However, a multiple design application can be much broader than a series trade mark application, since there is no requirement for the designs to resemble each other – rather, a multiple design application can cover very different logos or packaging designs.

7. What other possibilities for protection can registered designs provide?

Alongside protecting more “traditional” elements such as logos or packaging designs, registered designs can also be used to protect other strategies used by a business to establish brand identity.

For instance, registered designs can be used to protect new typefaces used on product packaging, advertising materials, etc. By registering a typeface as a registered design, the proprietor of that registration will enjoy a monopoly in that typeface, irrespective of the actual text printed in that typeface.

Many businesses are also now showing interest in the commercial opportunities presented by the Metaverse, such as in the development of virtual retail stores. Registered designs can be used to protect various elements of such virtual stores, whether this is the layout (or part of the layout) of those stores, or new virtual products displayed within those stores.

There are now even more possibilities for protection in  the EU, since the EU Designs Office now accepts representations of a design in a 3D model file (such as CAD files) or a video file (to capture full animation sequences) rather than the traditional image files.

8. What are the enforcement benefits of a registered design?

Although the test for registered design infringement is somewhat stricter than for trade mark infringement (as infringement may only arise if the third party is using an identical or nearly identical design), the absence of any restriction to goods means that you may have more options at your disposal if you have both registered trade marks and registered designs and you find yourself in a situation where a third party is using a very similar design in relation to dissimilar goods/services.

It is true that a limited degree of design protection will arise automatically (i.e. without registration) under the law of unregistered design right and copyright. However, registered designs provide a number of benefits over and above unregistered designs and copyright. For example, the owner of the design does not have to go through the (often challenging) process of showing when, where and by whom the designs were created in order to prove ownership and qualification for the design right and/or copyright being relied upon: a registered design gives clear proof of ownership. This is relevant in formal enforcement proceedings but is also a powerful tool informally when seeking to protect the design right. It is a much more persuasive argument to point at an entry in an official register that proves ownership than asserting that a raft of disparate evidence proves that an unregistered right exists. The design owner also does not (unlike with unregistered designs and copyright) need to prove copying by would-be infringers, another evidential hurdle it can be hard to clear when enforcing unregistered rights.

Registered designs can also be a very useful anti-counterfeiting tool. In short, a registered design can be used to challenge the importation and/or sale of any products bearing the design (e.g. a logo), whether via notice and take down procedures, via Customs intervention, or via traditional legal proceedings. In our experience online platforms such as eBay and Amazon action takedowns much more favourably if you can rely on registrations. Similarly, Customs enforcement officials see hundreds and thousands of products. The more information and certainty you can provide them about your rights, the more likely it is they will be able to act and successfully enforce those rights.

Conclusion

It can therefore be seen that registered designs present a number of advantages within the field of brand protection. We would accordingly recommend considering design protection alongside trade mark protection whenever a business develops a new logo, product or packaging design, as well as when considering alternative strategies to raise their brand profile.

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EU Design specialists

Dafydd Bevan is a Partner based in Marks & Clerk's London, UK office. He has particular experience of strategic advice on the litigation and licensing of TMT, electronics and software patents.

Dafydd Bevan

Partner Solicitor (UK)
Dafydd advises clients on the enforcement and commercialisation of intellectual property. He has particular experience of strategic advice on the patent litigation and licensing of TMT, electronics and software patents, regularly advising clients on such cases in the High Court and Court of Appeal.
Mike Shaw, Partner at Marks & Clerk in Manchester UK, specialises in trade marks, design rights, and copyright

Michael Shaw

Partner Registered and Chartered Trade Mark Attorney (UK)
Mike is experienced in all aspects of trade mark, copyright and design work, including the filing and prosecution of UK, overseas and international trade mark and registered design applications, and advising on availability and conflicts.
Photo: Adam Wilson

Adam Wilson

Senior Associate Registered and Chartered Trade Mark Attorney (UK)
Adam is a Chartered (UK) Trade Mark Attorney, with over 5 years’ experience in the Trade Marks and wider Intellectual Property profession.
raeme Murray, a Registered and Chartered UK Trade Mark Attorney specialising in brand and design protection across diverse industries, with a strong focus on the creative sector

Graeme Murray

Senior Associate Registered and Chartered Trade Mark Attorney (UK)
Graeme Murray is a Registered and Chartered Trade Mark Attorney (UK) with experience in advising individuals, companies and organisations from a diverse range of industries and professions on the selection, protection and exploitation of their brands and designs.

Amy Morris

Associate Chartered (UK) and European Patent Attorney
Amy joined Marks & Clerk in September 2018 as a trainee patent attorney in the Manchester office.
Photo: Louise Mansion

Louise Mansion-Bowen

Associate Chartered (UK) and European Patent Attorney
Louise joined Marks & Clerk in 2016 as a Trainee Patent Attorney after having graduated from the University of Strathclyde with a first class masters in Mechanical Engineering.