Is it possible to protect an unregistered design?

Is it possible to protect an unregistered design?

Unregistered designs can sometimes have a copyright protection (as a creative work of authorship). However, it applies only for individual (single) design. For industrial designs the copyright protection is hardly possible. The courts as a rule reject copyright claims in the industrial design disputes. If your industrial design is not registered you barely have any protection.

In US, the designs have patent protection. The requirements for a design to be registered are quite strict and a design must be represented according to all the rules.

In Europe, the Community Design Regulation provides two grounds of protection for industrial designs.

  1. Unregistered Community design – designs are automatically protected in the EU from the day they are made available to the public. Unregistered design protection lasts only for 3 years. It does not provide an exclusive right but only a right to prevent copying. Such protection can be relevant for the fashion industry, where new collections of clothes are presented every year and after three years the protection is usually not needed.
  2. Registered Community design – the designs in Europe are registered at the European Union intellectual property office. Differently from US, the designs in Europe does not have patent protection, but a registration process must be followed. The requirements for the design registration in Europe are less strict. It is easier to have the rights granted. Design protection can last up to 25 years. Each 5 years a renewal fee must be paid.