Criteria

In order to obtain a valid designright, both in the Benelux and in the European community, a design should meet three criteria:

1 The design must be new

The odd thing is, 'new' does not have to be all new, no 'new' means not older than a year. What you allowed to be seen on 1 June 2009 can still be protected on 30 June 2010.

Obviously, this makes possible to mend a lapse of priority. 

2 The design must have its own characteristics

Within the design laws, an own characteristic means the design does not look too similar to known products - whether protected or not. This does imply, if a product infringes a design right, its design protection must be void.

However, designers are not supposed to know everything what happens in the world. Especially tribal knowledge is not supposed to be known by designers, but designers are supposed to visit bourses in Japan or the United States of America, or at least pay attention to their catalogues.

3 All technological nessecary features in a design are not protected

The law intends to keep patents and designs separated. Any feature of a design which makes it work will have to be patented - and if patenting is not possible, they have to remain free from protection.

This is quite a firm obstacle - after all, a chair needs to do its job, it needs to have legs, for instance. The very fact a chair has legs is, therefore, not protected, but whether these are round or square in a cross-section, that does not matter for their function, and that can, therefore be protected.

The above is intended as general information. We gladly assist you in translating this to your specific situation. Please direct all your questions to info@jurimark.nl. We will contact you within one working day, when you direct your questions by fax or e mail.