Today the development and differentiation of new products is often based as much on innovative design as on inventions and other new technological ideas. Manufacturers can choose to differentiate their products by for example relying on new shapes or integrating new functionality – by using new colours, new surface finishes or new combinations of materials. Generally speaking, this applies mainly to decorative items, ornaments and the like.
Innovative design is often a significant factor of differentiation for industrial products, irrespective of whether priority is given to usefulness, ergonomics or purely ethical considerations. Industrial design has gained increasing financial significance in many industrial areas.
What can be protected?
Design protection can be awarded for the appearance of a product or product component. Design registration covers the design illustrated in pictures in the application. Designs can be registered both for three-dimensional items and for two-dimensional decorations, known as “ornaments”.
Design protection applies to craft or industrial products, regardless of whether the items in question are functional or decorative. However, it does not apply to computer programs. Actual rights to a design will only be granted if the design is new and distinctive. Designs are considered distinctive if a knowledgeable user’s holistic impression of the design differs from the holistic impression of any other design made publicly available prior to the application date.
Those who hold Swedish design protection have the right to prohibit others from making professional or commercial use of the design within the national borders of Sweden. This includes in particular manufacturing, offering, marketing, importing into or exporting from Sweden or using any product which includes or used the design, or stocking products for such purposes.
Protection for a limited period
In Sweden exclusive rights to a design apply for one or more 5-year periods from the application date. This protection can be extended by additional 5-year periods for a total of 25 years. For spare parts, the maximum period of protection is 15 years. Upon expiry of these periods, anyone is free to use the design, without permission and without any obligation to pay financial compensation.
Since 1 April 2003, it has been possible to file a single application with Office for Harmonization of the Internal Market in Alicante, Spain, and receive design registration for the entire EU. The rules for such registrations are based on the same legal framework as forms the basis for Swedish design protection legislation, with the difference that Community design protection legislation offers the design creator unregistered protection that applies for three years from the date when the product was put on the market within the EU.
Exclusive rights apply for one country. If you want to protect the same design in other countries, you have to file an application for registration with the authorities in the relevant countries within 6 months to maintain priority.
In some countries such as Finland, Denmark and Germany, there is a form of protection for technical ideas alongside the patent system for so-called “utility models” or “Gebrauchsmuster”. This form of protection is intended for simpler designs and provides protection for tools and utility goods.
In Sweden this form of protection is still not widely used. Utility models are, however, gaining ground in other countries, and developments within the EU may prompt a reconsideration of the Swedish view on utility models.