Industrial design: when does a product’s appearance qualify for protection?

It is therefore not about the idea behind the product or its technical function, but about how the product looks.

The first condition for protection is novelty.

A design is considered new if, before its filing date, no identical design has been made available to the public. The key word here is "identical" — a design that corresponds to the one being filed essentially one to one.

Assessing novelty is therefore usually relatively straightforward. It comes down to establishing whether a publicly available design identical to the one we want to protect already existed before the filing.

The second condition is individual character.

A design has individual character if it produces on an informed user a different overall impression from designs available earlier. This criterion involves more judgement than novelty alone. Cosmetic changes to a product already on the market are not enough.

If the differences are minor and do not affect the overall impression, the design may be found to lack individual character. In practice, that absence is often compared to a sense of "déjà vu" — the feeling of having seen something very similar before.

In practice, businesses sometimes file designs that are not new or lack individual character. Sometimes this is deliberate; more often it results from the absence of prior market analysis.

The consequences can be serious. In the best case the application will be questioned by the office. However, many systems — including the Polish Patent Office and EUIPO — operate a registration procedure in which the office generally does not examine at the filing stage whether the design actually meets the conditions for protection.

This means a design may be registered even though it should not enjoy protection. The problem surfaces later — for example when a competitor files an invalidation request. The registration may then be invalidated, and the business loses time, money and the legal certainty on which it based its actions.

For novelty and individual character, it matters whether the design was previously made available to the public. As a rule, any public disclosure counts — regardless of whether the design was shown by the designer or by a third party.

Public disclosure may include:

Such actions may cause the design to lose novelty or individual character. In many cases the best solution is therefore to file the design before starting sales, promotion or public presentation of the product.

There are exceptions to the rule that earlier public disclosure can defeat protection. One of them is the so-called grace period.

For EU designs, the designer or their successor in title may rely on a 12-month grace period. If the design was made available to the public by the designer, their successor in title or with their consent, it can still be filed with EUIPO within 12 months of that disclosure.

During this period, the earlier disclosure should not adversely affect the assessment of the design’s novelty and individual character.

It is worth remembering that a grace period does not apply in every country, or may work on different terms. If you plan to protect a product outside the European Union, check the rules of the relevant country in advance.