Good idea? Consider design protection early

Jon Lawson

Seeking registered design protection at an early stage can help innovative companies to bring their new products to market more quickly and avoid the risk that others might copy them. But should they be used instead of other forms of intellectual property (IP) protection – such as patents?

During the Covid-19 pandemic, there has been a massive increase in e-commerce activity as consumers and businesses have changed their shopping habits. As a result, products are more likely to be selected based on their appearance, which means registered designs protection has an even greater role to play in helping innovative businesses to drive sales and develop their market position.

Increased entrepreneurial activity in areas such as medical technology and PPE has led to heightened demand for registered designs protection on the way to market. Shortly after lockdown restrictions were announced, UK engineering business Sylatech secured registered designs protection in the UK for a personal handheld tool made from antimicrobial copper that helps limit a users contact with potentially contaminated surfaces when opening public door handles, operating an ATM and holding handrails on public transport.

Whilst this form of IP protection is mainly used to protect the aesthetics of an innovation, in some instances, it can be used to protect its functionality too. For example, if the new product has moving parts, these can be shown in two different states. Importantly, registered designs can also protect new products that may lack technological innovation but have a novel appearance or style. For example, a Harrogate-based maker of garden pods for home workers has secured registered designs protection for a new home office product offering, Anthropod Go.

Having acquired registered designs protection, which typically takes a matter of weeks, innovators can bring their new product to market immediately, with peace of mind that any copycat products can be blocked quickly if needed. The enforcement rights that accompany registered designs protection are relatively easy to use. For example, if alerted that a copycat product was in circulation, a customs official would be able to compare it to the registered design and place it in quarantine before market entry. The rights owner could then seek a court injunction to block the infringing item from sale.

Some SME innovators may wrongly believe that intellectual property protection is not relevant to them if their product lacks technological inventiveness. Even if this is the case, it could meet the criteria for registered designs protection, giving them exclusive rights to its appearance for up to 25 years. Underlining the importance of IP rights, a study published by the European Patent Office (EPO) and European Intellectual Property Office (EUIPO) last year revealed that SMEs with one or more IP rights are 21% more likely to experience a growth spurt and 10% more likely to become a high-growth firm.

Registered designs protection can help businesses to pivot and bring new products to market quickly and confidently. When bundled together with other IP rights, such as trade mark registrations and patents, they can also help businesses to increase their market share over time, optimising value as they do so.

• Author Richard Worthington is a partner and designs specialist at European intellectual property firm, Withers & Rogers.