2 March 2022
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While patents protect the technical aspects of products, registered design rights can be used to protect the way that they look and feel. However, despite aesthetics adding significant value to products across a range of industries, registered design rights are sometimes overlooked by companies looking to protect their IP compared to trade marks and patents. This is despite registered design rights being extremely inexpensive and quick to obtain in the UK and EU.

GUIs - historically underutilised design rights area

One of the areas in which registered design rights have historically been underutilised is digital designs, including graphical user interfaces and computer icons. However, provided that certain requirements are met, UK and EU design law allows for a very broad range of designs to be registered. Both define ‘design’ as “the appearance of the whole or part of a product resulting from the features of, in particular, the lines, contours, shape, texture or material of the product or its ornamentation”. The reference to ‘contours, ‘shape’ and ‘texture’ makes it unsurprising that the system is commonly utilised to protect 3D products in fields such as clothing, furnishing and packaging. However, UK and EU law also makes it clear that ‘product’ can include “any industrial or handicraft item other than a computer program; and, in particular, includes packaging, get-up, graphic symbols, typographic typefaces and parts intended to be assembled into a complex product”. While there is an exception for computer programs themselves, the specific inclusion of ‘graphic symbols’ and ‘typographical type-faces’ in the definition of product makes it clear that many digital designs are eligible for protection.

Over the last several years, there have been a growing number of applications to protect graphical user interfaces or features such as computer icons. It is even possible to protect animated graphical user interfaces in the UK and EU. With the rise of internet-enabled smart devices in the home and virtual and augmented reality technology improving every day, the number of UK and EU registered design filings will likely only increase over the coming years. Properly utilised, registered design rights can therefore provide companies innovating in related fields with an advantage over their competitors and additional options besides copyright, patents and trade marks in the case of disputes.

Like other types of designs, 2D designs still need to fulfill certain criteria to be registrable. With some limited exceptions, they must have been new and have ‘individual character’ at the effective filing date of their application for registration. ‘Individual character’ means that the design gives an informed user a different overall impression compared to earlier designs. Where there is a lot of design freedom, as is arguably the case for graphical user interfaces, small differences can often be enough to differentiate a new design. In other cases, the designs will be considered similar. Designs must also not incorporate protected symbols such as the Olympic rings or Royal Arms and must not infringe third party trade marks or copyright works. Where freelance designers are used, companies should check that ownership has been transferred to them and they are entitled to apply for any resultant design rights.

UK vs. EU application submissions

There are some differences in practice between the UK and EU and advice should be taken before submitting any applications. For example, in the UK, it is possible to disclaim elements of a product or part of a product in writing while in the EU visual disclaimers such as broken lines must be used. In the case of animated designs, the EU Intellectual Property Office guidelines state that it is the applicant’s responsibility to order the views in a way that makes the intended progression clear. The UK system allows for more views than in the EU, providing additional flexibility in how this is achieved. Due to the requirement that a design is new, it is especially important that advice is taken at the earliest opportunity if protection will be required in multiple countries so that an appropriate filing strategy can be devised.

This blog was originally written by Rebecca Campbell.

Urs is a Senior Associate and Patent Attorney at Mewburn Ellis. He has experience of original patent drafting and prosecution at the EPO and DPMA (German Patent and Trade Mark Office), principally in the engineering and medical technology sectors. Urs regularly represents clients in opposition and appeal proceedings at the EPO and DPMA. He has a special interest in optics and microscopy.

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