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Registering a Trademark Vs Registering a Design

27th September 2011
By John Adam in Business Law
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Registering a trademark is not the same as registering a design. And registering a design is not synonymous with patenting the actual product itself. So to avoid any confusion, one must be clear first what it means to register a design. It protects those elements that make a product seem unique, like it appearance, but it does not protect the actual product itself. A design right gives the design owner the sole right to use the design for commercial motives. It includes the various lines, shapes, textures, curves, graphic symbols whether two-dimensional or three-dimensional, and typefaces etc. The design has to be original to be protected. This is one mistake done by small business which cleverly copy the designs of trademarks belonging to some other corporations and then subsequently seek design protection.

The novelty of the design can be proved if no other similar design has been made public before. In many cases, some aspects of the design may not be unique. For example the shape of a scoop may be unique but not its dimensions. And so one can only seek protection for the shape but not the dimensions of the scoop. Similarly, if the design comprises a flower with a pot but only its petals are unique but not the pot, then protection can only be sought for the petals and not the pot. If some other Company decides to use the same pot for its design, one cannot hold it liable for violation.

There are some designs which cannot be registered. These include designs that go against the public sentiments of morality or generally accepted principles. A registered design lasts for 5 years in the United Kingdom but the term may be extended to over 25 years. Interestingly, if the design is registered during the period of employment, the owner of the design is the employer and not the employee. The Trade mark Registration process takes a total of 2-3 months whereas community designs take about 4 months to register. Whereas a trademark has to be registered if one is to protect it, a design does not have to be registered to protect it. Even an un-registered design gives the owner the sole right to use that design. The third parties can be given a license to use the design commercially. The appearance of a product whether industrial or handicraft is a design.

However, it must be noted that computer programs do not come under the category of handicrafts. A design can be registered in the United Kingdom by the United Kingdom Intellectual Property Office just like a trademark, in which protection is only limited to the borders of the United Kingdom. However, if one registers a design using the Office of Harmonization for the Internal Market, which registers the Community Trade Mark in the European Union, the protection of the design can be extended to all the 27 member states of the European Union and not just the United Kingdom. So one has an inherent advantage in registering with OHIM.

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