The external design of a product often determines its commercial success. Think of the distinctive lines of a designer chair, the aesthetics of packaging, or the design of a consumer item. These visual elements are not merely decorative, but are an essential part of the product's brand identity and positioning in the marketplace.
Once a design enters the market, it runs the risk of imitation or counterfeit. To legally protect such designs, the design right. Design law (also called design and model law) protects the visual characteristics of products against unauthorized copying and counterfeiting. It is a powerful tool within the realm of the intellectual property, which is often used complementarily to, for example, the copyright whether it trademark law.
What is the meaning of a model?
One model is the outward appearance of a product or part thereof. Such appearance may be determined, inter alia, by the lines, contours, colors, shape, texture and/or materials of the product itself and/or its ornamentation.
So it is not about technical or functional aspects, but only about what is visible to the user. This distinguishes design right from patent law, which protects technical innovations.
Conditions of protection
To qualify for design protection, a design must meet two cumulative conditions:
- Novelty: the design must not have been previously disclosed anywhere in the world. Any previous disclosure may compromise the validity, unless a so-called grace period is used (e.g. within 12 months of first disclosure).
- Own character: the model must be sufficiently different from existing designs. The overall impression that the model gives to an informed user must differ from that of older models.
What is design right?
With a valid design right, you have the exclusive right to:
- use the model (commercial or non-commercial);
- apply the model in production or distribution;
- prohibit third parties from using, manufacturing, selling, importing or offering an identical or similar model without permission.
In case of infringement, you can act through a notice of default, negotiations or legal action, such as seeking a cease-and-desist order or damages.
Legal framework
The design right is governed by Benelux, European and international level.
1. Benelux model
Design protection within Belgium, the Netherlands and Luxembourg is regulated through the Benelux Convention on Intellectual Property (BTIP).. This treaty created a unified system for the three countries administered by the BOIP (Benelux Office for Intellectual Property).. Importantly, the protection automatically applies throughout the Benelux: a registration limited to Belgium is not possible.
Within the European Union, the national design right (for Belgium: the Benelux design right) has been harmonized by Directive 98/71/EC. As a result, national design rights within the EU are very similar.
Want to know more? 👉 Read more about the Benelux model
2. Union model (community model).
Regulation (EC) No. 6/2002 introduced a Union model (formerly called a community model) that provides protection for the entire territory of the EU. Thus, a design can be automatically (limited) protected if unregistered Union model (for three years) or protection can be sought from the EUIPO (European Union Intellectual Property Office) as registered Union model .
Want to know more about European design law? 👉 Read more about the Union model
3. International protection
Internationally, protection can be obtained through the Hague System (last amended by the Geneva Act of July 2, 1999), administered by the WIPO. This system allows one to obtain protection in multiple countries through a single application. Belgium and the EU are both parties to this system.
In addition, other treaties also play a role, such as:
- the Paris Agreement (right of way)
- the TRIPS Accord (arts. 25-26)
- the Bern Convention (art. 2(7))
- the Agreement of Locarno (classification of models)
4. Enforcement and additional legislation
Enforcement of design rights in Belgium is done through:
- Book XI and Book XVII of the Code of Economic Law (WER).
- Judicial Code, including for jurisdiction rules and anti-counterfeiting seizure
- Regulation (EU) No. 608/2013 On customs enforcement of IP rights
Our services
Our law firm assists designers, entrepreneurs and companies every step of the way in protecting their designs:
- Legal advice on protection options
- Analysis of novelty and individuality
- Choice between Benelux or Union model
- Formatting and filing the application to register a design
- Strategy for unregistered models
- Enforcement (or defense) for infringements of design rights.
We combine legal precision with a pragmatic approach, tailored to your sector and your commercial objectives.
Get in touch
A strong design deserves strong legal protection. Do you wish to register your design or are you unsure whether your design qualifies for protection? Would you like to take action against infringement or defend against a claim? Feel free to contact our lawyers for an initial exploratory discussion.
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