Find what is registrable
A pass across the range to identify what is worth protecting and what will never qualify.
Brands and trade marks
Design rights.
Trade marks protect the name. A great deal of what gets copied is not the name. It is the shape of the product, the surface it carries, the way the parts are arranged and the thing that makes it recognisable across a room. That sits in design right, and most businesses find out it exists once it is already too late to register.
What this looks like when it goes wrong
The usual arrival is a product that has been copied faithfully and named differently. The proportions are the same, the detailing is the same, the packaging follows the same logic, and the brand on it is somebody else's. A trade mark complaint achieves nothing, because nothing about the name has been taken, and the business is told that the thing it thought it owned is the thing it never protected.
The second is a door that closed before anybody knew it was there. The design was shown at a trade fair, put on a website, sent to retailers or previewed to an audience, and only afterwards did anybody ask about registering it. Novelty is judged against what was already available to the public, and a business can destroy the novelty of its own design without a competitor being involved at all.
The third is ownership sitting somewhere unexpected. The design was produced by a freelancer, a studio or an agency, an invoice was paid, and no assignment was ever signed. Commissioning work and paying for it does not, by itself, put the rights in the commissioner's hands. The business finds this out at the moment it needs to enforce, or at the moment a buyer asks.
The fourth is a reliance on unregistered rights that turn out to be narrower than expected. They exist automatically, which makes them easy to assume and hard to rely on. Their scope, their length and what they actually catch differ from a registration in ways that matter precisely when the argument gets serious.
What actually decides it
A registered design protects the appearance of a product and is judged against what was already out there. It has to be new and it has to produce a different overall impression from what came before. Appearance that is dictated solely by technical function is not what this right is for, which is why two products that must be the same shape to work can be the same shape and nothing follows from it.
The decisive difference between registered and unregistered protection is what has to be proved. A registration is a monopoly in the appearance, and independent creation is no answer to it. Unregistered rights are, broadly, rights against copying, which means proving that the other side actually took it rather than arrived at it. That is a considerably harder thing to establish and it is the reason registration is worth the trouble on anything that will be in the range for a while.
Timing is the part that catches people. Because novelty is measured against what has already been made available, the moment a design is shown publicly is the moment the position starts to narrow. Some systems allow a limited period after the designer's own disclosure in which an application can still be made, but its length and scope are not uniform and it is a poor substitute for filing first. The unregistered rights available in the United Kingdom also changed following the departure from the European Union, and where a design is first disclosed can affect what arises.
Ownership has to be documented. Designs are frequently created by people outside the business, and the default position is not always the one the business expects. An assignment in writing, taken at the time, is what turns a design into an asset the company can license, enforce and sell. As with trade marks, an unjustified threat of design infringement can itself found a claim against the person making it.
What we do
File before the reveal
Applications made ahead of launch, samples, showrooms and press, while novelty is still intact.
Get ownership in order
Assignments from designers, studios and agencies, taken in writing rather than assumed from an invoice.
Enforce the shape
Action against a product copied in appearance where nothing about the branding has been touched.
Combine the rights
Design, get up and copyright run together, so a copy is met with more than one argument.
Say when nothing exists
A straight answer where the design is old, functional or already disclosed and no right arises.
When to spend nothing
A range that turns over quickly, where each item is superseded before a copy could reach the market, rarely justifies registering everything in it. The sensible approach is to register the pieces that carry the identity of the range and the items expected to stay in the line, and to accept that the rest are protected by being replaced.
There is also no point protecting a shape that had to be that shape. Where the appearance is driven entirely by how the product has to work, or where it is close to things that were already common in the sector, the right is either unavailable or so narrow that asserting it invites an attack on its validity. Being told that early is cheaper than being told it in the middle of a dispute.
Brands and trade marks
More on brands and trade marks
- Trade marks
- Copycats and counterfeits
- Infringer identification
- Oppositions and disputes
- Brand enforcement
- Portfolio strategy
Before anything is sent
Positions harden the moment the other side takes advice, and the quiet routes stop being available once a demand has gone out. While nothing has been sent, everything is still open.