How do I protect the way my product looks?

A registered design is the strongest right available to protect the look of a product – the shape or configuration of the whole or a part of that product. This can be useful to stop ‘knock offs’ and ‘imitations’, as long as your design is novel in the market. But when judging the similarities between aesthetic product qualities, ensuring that the initial registered right has been filed correctly is core to winning a dispute.

Design litigation is expensive. It is often undertaken by huge commercial players, settling disputes over their flagship products. Some of the most high profile intellectual property litigation ever has been undertaken by the giants of mobile technology, Apple and Samsung. One such case was the potential infringement of Apple’s registered design for their iPad tablet computer. The case raises several important points. The first is  related to the filing of the application and whether it was done correctly, particularly regarding the importance of dotted lines in a registered design, and how these are interpreted under law. Are they, in the case of a tablet computer, intended to reveal an otherwise hidden visual feature? Are they, in the case of a textile goods, intended to be stitching? Fundamentally, will your registered design be interpreted in law as you intended?

The second consideration is related, being whether your registered design offers you the protection you desire. Apple litigated, claiming that Samsung had infringed their design for their tablet computer. The similarities were there – rounded edges, flat transparent surfaces – the list went on. But did the use infringe the earlier registered design? The judge in this case analysed the registered design, and the use made by the defendant. Mere similarities however are not enough to infringe. The Judge’s decision, in a somewhat unexpected choice of phrasing, was that the Samsung products ‘do not have the same understated and extreme simplicity which is possessed by the Apple design. They are not as cool.  The overall impression produced is different.’ The overall impression is the legal test.

There is no question as to whether you can protect how your product looks – legislation allows this. But getting the right legal protection, that can actually be used to your advantage, should be the core consideration – and this must be taken into account from filing.


By Benjamin Scarfield