Legal definition of “design”
A Registered Design is a legal right which protects the overall visual appearance of a product or a part of a product in the country or countries a person registers it.
For the purposes of registration, a design is legally defined as being “the appearance of the whole or part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product or ornamentation.”
This means that protection is given to the way a product looks. The appearance of the product may result from a combination of elements such as shapes, colours and materials.
References to texture and materials does not mean that protection may be granted for the feel of a texture, or what the product is actually made from; only that these features may influence what the overall product looks like. Equally, design registration cannot protect non-stylised wording (ie. basic text), the way something works, or the idea or concept behind a product.
People can register a three-dimensional product such as an industrial or handicraft item (other than a computer program), or two-dimensional ornamentation alone, eg. a pattern intended for display upon a product, or a stylised logo. In all cases, the term “product” can mean things like packaging, get-up, graphic symbols, typographic typefaces, and parts of products intended to be assembled into a more complex product.
In respect of ‘get-up’, protection may be granted to the overall presentation of those products
which comprise multiple components but which are sold as one single item, eg. a board game complete with playing pieces, or a product in its packaging. ‘Get-up’ does not include sets of items which may be bought individually, such as cutlery or suites of furniture.
A Registered Design can be a valuable intellectual property right. It can form the basis of an infringement action against other parties, and will help the owner in stopping others from creating designs which are too similar to the one they own (within the same geographical area of protection of the design).
For its registration to be valid, a design must:
- Be new
- Have individual character.
- A design is considered to be ‘new’ if no identical (or very similar) design has been published or publicly disclosed in Mexico for the purposes of Mexican designs. However, people can apply to register a design in the country where people seeks protection up to 12 months after the designer first discloses it.
- The term ‘identical’ covers designs whose features differ only in ‘immaterial details’.
- Individual character means that the appearance of the design (known as the overall impression)
- is different from the appearance of other already known designs.
- This is assessed from the view of the “informed user”, a person who is familiar with the kind of product in question, and the amount of design freedom will be taken into account.
People may not be able to register their designs if:
- It is not a design by legal definition as described above
- It is offensive
- It consists of, or includes, certain protected flags and international emblems
- It is solely dictated by the product’s technical function
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