Introduction

You create a product people love, and within weeks a copy appears online. The materials are worse, the price is lower, and it is clearly based on your work. Many sellers only then discover that they could have protected the look of their product across the whole European Union for a few hundred euros, and that they may already hold a basic right against copying without ever filing anything.

A trade mark protects your name and logo, and that is covered in other articles in this series. This article covers the product itself, meaning how it looks. The tool for that is the EU design right, and it is one of the most underused rights in e-commerce. Below we explain what a design right protects, the free protection you may already have, what registration adds, and a practical plan for sellers.

What a Design Right Protects

A design protects appearance. That means the shape, lines, colours, texture, materials and decoration of a product. Under the reformed EU rules it also clearly covers modern forms of appearance, such as animations and transitions, graphical user interfaces, icons and typefaces, and it can protect products that exist only in digital form. The definition of a product expressly excludes computer programs themselves, so the right protects what the software looks like on screen, not the code behind it.

It helps to know what a design right does not cover. It does not protect the technology inside a product, which is the job of a patent. It does not protect your brand name as a sign of where a product comes from, which is the job of a trade mark. And it is not the same as copyright in an artistic work. A design right protects the look, which in online selling is usually exactly the thing that gets copied.

To be valid, a design must be new and must have what the law calls individual character. In plain terms, a well-informed buyer who knows the market must get a different overall impression from your design than from designs that were already available. One practical point matters a great deal here. When you apply to register a design, the EU Intellectual Property Office, known as the EUIPO, mainly checks the formalities. It does not examine whether the design is actually new. This makes registration quick. The downside is that validity is tested properly only when you enforce your right, so anything already made public before your filing, including your own early publications, can be used against you. We come back to this in the plan below.

The Protection You Get Without Filing

Most sellers do not realise they may already have some protection. When a design is first made available to the public, for example when your product listing goes live, you post the launch on social media, or you show it at a trade fair, an unregistered EU design can arise automatically. There is no application and no fee, and it lasts three years from that first disclosure.

This protection is real and it can be used against copies, but it has limits. It only protects against copying. If the other side can show that it created a similar design independently, without knowing yours, it is not infringing. You must also prove your case: that your design was disclosed, when and where, and that the other product was copied from yours. So start a simple habit now. Keep dated evidence of every first disclosure, such as screenshots of listings, launch posts and invoices. A right you cannot date is a right you cannot use.

Where you launch also deserves thought. The old EU rules said expressly that a design had to be made public inside the EU to receive unregistered protection. The reform removed that wording, but the remaining test still asks whether the design could reasonably have become known to specialists in the relevant sector operating in the EU. Because of this, the safest practice is still to make your first disclosure inside the EU, or at the same moment inside and outside it.

Three years passes quickly. The law also provides a useful bridge. Your own disclosure does not destroy the novelty of your design for twelve months. This is called the grace period, and it lets you launch products, see which ones sell, and then register the successful ones before the twelve months end.

What Registration Adds

A registered EU design, obtained through a single application to the EUIPO, covers the whole European Union and gives you much stronger protection. You no longer need to prove copying, because the right is exclusive, so even a similar product created independently can infringe it. In a dispute, a registered design is treated as valid unless the other side proves otherwise. Enforcement also becomes far more practical, because customs authorities and online marketplaces act much more readily on a registration number and certificate than on arguments about copying. Protection lasts five years and can be renewed in five year periods up to a maximum of twenty five years.

The registered system was reformed in two stages, and several of the changes are useful for sellers.

The right is now called the EU design, replacing the older name Community design. Applications must be filed directly with the EUIPO rather than through national offices. The definitions cover digital and animated designs. Creating, downloading, copying, sharing or distributing a file that records a protected design, for the purpose of making the product, can now itself be an infringement, which targets copying through 3D printing. There is a permanent rule allowing spare parts to be used to repair complex products and restore their original appearance. And there is an official symbol, the letter D in a circle, that you may use on products to show that the design is registered.

The fee structure also favours building a portfolio. The first design costs 350 euros including publication, and each additional design in the same application costs 125 euros. One application can contain up to fifty designs, and they no longer need to belong to the same product category. Renewal fees, however, rise with each five year term, so it makes sense to renew only the designs that still earn money. Fees can change, so check the EUIPO’s current list before filing.

A Practical Plan for Sellers

Putting this together, a sensible plan looks like this.

• Use your rights actively. Put the design symbol on your listings, consider applying to customs for action against infringing goods, and file marketplace complaints that quote your registration number.

• Think about where you launch. Make your first public disclosure inside the EU, or at the same time inside and outside it.

• Keep evidence from day one. Save dated proof of every launch, including listings, posts and invoices.

• Use the grace period deliberately. You have twelve months from your own first disclosure to register. Let the market show you which products succeed, then file those before the period ends.

• File as a portfolio. Because additional designs in the same application cost much less than the first, protecting several successful products at once is usually cost effective.

• Get the representations right. The drawings, photographs, video or 3D models you file define what you own. If they are too narrow, copiers can make small changes and avoid your right. If they are unclear or inconsistent, you give the other side arguments to cancel it. This is where filings are won or lost.

• Combine rights. A trade mark for the name and a design for the look give you two separate grounds when you ask marketplaces to remove copies or ask customs to stop them.

Conclusion

In summary, a design right protects how a product looks, including its shape, pattern and texture and, under the reformed rules, digital and animated designs too, and it requires novelty and individual character. A first disclosure can give you a free unregistered EU design lasting three years, but it only protects against copying, so keep evidence of your launches and, to be safe, launch first in the EU or at the same time as elsewhere. Registration turns the look of your product into an exclusive right across the whole EU for up to twenty five years, with stronger tools for customs and marketplace enforcement. And the twelve month grace period gives you time to see what sells before you register it. The underlying lesson is about timing. Copies usually appear precisely when a product starts to succeed, which is also when sellers are busiest and least likely to think about legal protection. Deciding in advance which products you will register, and keeping your evidence in order from the first day, turns a stressful reaction into a routine step.