What are design rights?
The appearance of a product may in some cases be protected by Design Law. The rule and regulations governing this are specified various places.
- You can register a Danish design which is valid in Denmark under the Danish Design Act. The duration of the protection is 5 years with the possibility of renewal for up to 25 years. You get the protection by registering with the Danish Patent and Trademark Office.
- You can get a registered Community design in accordance with the EU Design Regulation. The duration of the protection is 5 years with the possibility of renewal for up to 25 years. You get the protection by registering with the EU authority, OHIM. The protection applies throughout the EU.
- You can obtain an unregistered Community design under s. 11 of the EU Design Regulation. The duration of the protection is 3 years. You get it automatically as soon as you have published the design somewhere in the EU. See section 11, subsection 2 of the Design Regulation for more details. 11(2)
According to the requirements for design protection, the design must be new and of an individual character.
In certain situations a product cannot obtain design protection (even though the design is new and has an individual character):
- You cannot protect products or product parts whose appearance is dictated solely by technical considerations. For example, you cannot design protect nuts and bolts, or tools whose appearance is solely due to purely technical considerations.
- Nor can you design protect products or product parts whose appearance is due to the desire to connect it to something else. For instance, you cannot protect part of a vacuum hose that looks the way it does because the hose must be connected to the vacuum cleaner.
- And parts of ‘complex products’ – that is, products whose parts can be replaced so that the product can be disassembled and reassembled, for example computers, cars, bikes, etc. – are finally protected only if a. the parts are visible during the normal use of the product, and b. the parts that are visible during normal operation are themselves new and individual. See section 4 of the Design Act and section 4 of the Design Regulation for more details.
Design law provides an exclusive right of commercial exploitation of the design, therefore it will among other things require permission from the designer to put the design into production, sell it, etc.
You can read more about design protection at the web site of the Danish Patent and Trademark Office, www.dkpto.dk.
Researchers’ design rights
Sometimes research results in products that can be protected by design law. The question then remains to what extent they themselves hold the design right, or if it passes to the research institution or enterprise they are employed by.
If the design is an expression of creative art, reflecting an aesthetic choice by the researcher, the design can be protected by design law a well as copyright law. In this case, the question of the extent to which the institution gets a share of the design right is decided under the rules and regulations about copyright of works created during employment. See Research and copyright.
If the design does not reflect actual creative, original art, the design right will in principle be assigned to the institution or enterprise by which the researcher is employed, due to the employment relationship.