A brick in the design wall

19 September 2019

In addition to registering words, logos and slogans as a trademark, you can also protect a design as a model. Because companies are increasingly distinguishing themselves in terms of packaging and product design, design protection is gaining popularity. In fact, a design registration can sometimes give an important advantage to competitors, who have to look for a different design for a certain product.

To be eligible for registration, a design needs to be new and the overall impression should differ from what already exists. And that is sometimes difficult. A rule of thumb in this respect: if there are already many comparable designs on the market, a design sooner differs from the others. The scope of protection of such a design is however limited in such cases.

In the European Union, the EUIPO does not examine whether a design is valid. It is up to third parties to contest a design registration. In the case of the below registration of the lookalike Lego man, Lego filed a cancellation action and stated that the design was not new and had no individual character. After all, the man had the same characteristics as the existing Lego man and did not show an other overall impression.

The EUIPO comes to the conclusion that there are differences between the models but that the similarity prevails. For that reason, the design registration must be declared invalid.

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