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An industrial design registration or a design patent protects original features of shape, configuration, pattern or ornamentation applied to manufactured articles. The industrial design registration protects not only the specific design registered, but also any design not differing substantially therefrom.

In some countries/regions, the term of industrial design protection is ten years from the date of grant of the national industrial design registration. Some national design patents, for example, in the United States, have a fourteen-year non-renewable term, counting from the date of grant of the design patent.

In some countries/regions, an application for industrial design registration must be filed no later than one year after the earliest publication of the design. "Publication" includes distributing samples of an article bearing the design, selling or exhibiting such articles for sale, publishing the design in advertising or other printed material of any sort, public use of articles bearing the design, etc.

The United States has a similar one year "grace period." Many other jurisdictions have no grace period whatever. Any public disclosure of the design, before filing an application for industrial design registration, can result in loss of protection in such countries.

Time and budget permitting, it may be wise to conduct a search before applying to register a design. If the same or a similar design has been disclosed, anywhere in the world, the design may not be protectible. Worldwide searches are impractical, so a limited search is usually made in only one country.

No search will "guarantee" the registrability of any design. The object is to make a reasonable assessment of the prospects for obtaining worthwhile design protection. Search results can also be useful in preparing an application for design registration. Design registrability searches typically involve a time-consuming examination of design illustrations on file in the office in which the search is conducted. Searches need not be confined to the records of an Industrial Design or Patent Office. Trade catalogues published anywhere and at any time by manufacturers of similar articles are often worth searching for relevant prior art designs.

In some cases examiners raise objections that are usually answered by amendment of the application, argument, or both. If not satisfactorily dealt with, such objections can be fatal to the design application, but that is quite rare. Further, in most countries various appeal procedures are available.  If the examiner is ultimately satisfied with the merits of the application, it is allowed and an industrial design registration certificate is issued. It takes about six months to one year after filing of the application (longer in some countries) to "prosecute" the application through to the grant of an industrial design registration.

Most countries belong to the "Paris Convention." This allows a design applicant to claim priority in respect of an earlier-filed design application. Applications filed in such countries within six months of the filing date of the original application are treated as though they were filed on the original filing date.

As previously indicated, to obtain valid design protection in most countries it is essential to file an application to register the design before the design is publicly disclosed. An important exception applies if priority can be claimed as above. It is normally sufficient to file priority-claiming applications in most countries within six months of the date on which the earliest application was filed, provided that the earliest application is itself filed before any public disclosure of the design anywhere in the world.

Fast Design Facts
  • Designs protect the physical appearance and visual appeal of products.

  • If there are designs on our register that look the same as or similar to yours, your design could be challenged after registration. This could result in your design registration being invalidated. You can check if someone else has got there first.

  • You apply for Registered Design Protection by filing out the appropriate application form and paying a fee. The Patent Office will send you a receipt confirming all the details you have sent and the date the office received your application.

  • If the application is successful, the patent office will register your design in the national and/or regional Designs Register; and publish your registration details in Designs Journal.
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James Potvin
IP@Industry USA
 
 

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