Industrial design: the legal tool that protects your products against copying
In an increasingly competitive global market, safeguarding the aesthetic appearance of products is just as important as protecting their functionality or their brand. Industrial design is a legal right that grants businesses exclusive protection over the external appearance of a product, preventing third parties from imitating it or marketing copies without authorisation.
For this reason, the registration of an industrial design has become a strategic tool that goes far beyond a mere administrative procedure. It helps preserve the identity and economic value of products on the market, strengthens companies’ competitive advantage and significantly reduces the risk of plagiarism and imitation.
Understanding how this mechanism works and how to implement it effectively is essential in order to enhance a company’s products and maintain a sustainable competitive edge. Accordingly, below we analyse in detail how this form of protection operates, its legal requirements and how it can be effectively integrated into a company’s industrial property strategy.
What is an industrial design and why is it relevant for a business?
An industrial design protects the aesthetic appearance of a product, including its lines, contours, shape, pattern, configuration, colours or any other visual features that are perceptible to the naked eye and do not derive exclusively from its technical function. This protection is independent of the functional aspect of the product, as it focuses solely on its external appearance. This distinguishes industrial designs from trade marks (which protect distinctive signs) and patents (which protect technical solutions).
For a business owner, this means that the way a product is perceived and remembered by customers, its visual impact, can become a legally protected asset. In this sense, registering an industrial design offers significant competitive advantages for businesses of any size, as it grants an exclusive right of exploitation enabling the holder to prevent third parties from copying, reproducing or marketing products with an identical or similar appearance without consent.
Moreover, a registered industrial design becomes a strategic and transferable asset, which may be licensed, assigned or incorporated into the company’s balance sheet, making it particularly relevant in investment, financing or sale transactions. This protection strengthens brand identity and product recognition by safeguarding appearance, contributing to differentiation from competitors, improved consumer perception, and greater loyalty and recognition in the marketplace.
In addition, registration facilitates a much stronger and more effective judicial defence against imitations or copies, significantly increasing the likelihood of success in legal proceedings.
All of this makes the registration of industrial designs especially valuable in sectors where aesthetics play a decisive role in purchasing decisions, such as industrial design, fashion, consumer electronics, toys or luxury goods.
Basic requirements for protecting an industrial design
In order for an industrial design to be registered and enjoy legal protection, it must meet two fundamental requirements: novelty and individual character.
Novelty requires that the design has not been made available to the public prior to the filing date. Any publication, exhibition, catalogue or online disclosure that renders the design accessible to the public destroys novelty. However, the law provides for a grace period (12 months where disclosure originates from the designer or with their consent), allowing the application to be filed without such prior disclosure affecting novelty. It should also be noted that, in practice, minor purely ornamental variations or functional changes affecting only minimal aspects of appearance are insufficient to preserve novelty.
Individual character requires that the design produces a different overall impression on the informed user, an observer situated between a technical expert and an average consumer, compared to designs previously made available to the public. The assessment is global, taking into account the overall perception of the design and the degree of creative freedom enjoyed by the designer. Consequently, in sectors subject to strong functional constraints (e.g. street lighting), a lower degree of differentiation may suffice than in sectors with greater aesthetic freedom (e.g. toy design).
Not all visual features are registrable. Excluded from protection are, for example, features dictated solely by technical function, official symbols or emblems, and elements contrary to public policy or accepted principles of morality. To increase the likelihood of success, it is advisable to properly document novelty and individual character (comparative images, dates, samples and arguments relating to the perception of the informed user) and to justify how the design objectively differs from known prior designs.
Form and scope of industrial design protection
Protection of industrial designs through the Spanish Patent and Trade Mark Office (OEPM) and the European Union Intellectual Property Office (EUIPO) constitutes the core of the design protection system in Spain and the European Union.
The OEPM is the authority responsible for protecting industrial designs at national level. By registering a design with the OEPM, the holder obtains an exclusive right valid throughout Spain, enabling them to prevent third parties from manufacturing, marketing, importing or using products incorporating a design that is identical or does not produce a different overall impression. This form of protection is particularly suitable for businesses whose primary market is Spain or which wish to begin their protection strategy at national level.
The EUIPO, for its part, administers the Registered Community Design (RCD), which provides unitary protection across all EU Member States through a single application. This system is especially advantageous for companies operating in multiple EU countries, as it simplifies administrative management and reduces costs compared to filing multiple national registrations.
Both registration with the OEPM and the Registered Community Design before the EUIPO grant an initial term of protection of five years from the filing date, renewable for successive five-year periods up to a maximum of twenty-five years. Both systems also allow the claiming of priority rights under the Paris Convention, facilitating coordination between national, EU and international applications within a six-month period.
Other means of protecting industrial designs
Registering an industrial design is only one component of a comprehensive protection strategy. While it constitutes an important legal barrier, its effectiveness is multiplied when combined with additional measures.
In this respect, non-disclosure agreements (NDAs) with suppliers, distributors and collaborators are a fundamental preventive safeguard. A well-drafted NDA clearly defines the protected information, the obligations of the parties, time limits and penalties for breach. It should also include clauses governing the return or destruction of confidential materials and ownership of improvements or derivative developments.
Likewise, combining different intellectual property rights strengthens protection by creating multiple layers. An industrial design protects appearance; a trade mark protects distinctive signs; copyright may cover associated creative works; and a patent (where applicable) protects technical inventions. This layered defence forces potential infringers to overcome several legal barriers, increases deterrence and broadens enforcement options.
Other practical measures include active market surveillance to detect imitations at an early stage and take action before damage becomes entrenched. This involves monitoring trade fairs, e-commerce platforms, social media and physical points of sale, and collecting evidence (screenshots, dates, prices, locations) that may later serve as proof in potential legal proceedings.
Conclusions
In conclusion, industrial design protection should today be regarded as a strategic pillar, as registration confers an exclusive right over a product’s appearance. This right not only protects customer perception, but also strengthens commercial identity and generates a patrimonial value capable of economic exploitation through licences, assignments or consideration in investment and business valuation processes.
For such protection to be genuinely effective, it is essential to strictly comply with the legal requirements (novelty and individual character), to properly document relevant dates and comparisons, and to understand the different territorial options available, whether national registration before the OEPM or the Registered Community Design before the EUIPO, together with their respective renewal periods.
Furthermore, registration does not operate in isolation. Maximum effectiveness is achieved when it is integrated into a defence-in-depth strategy that includes confidentiality agreements with collaborators, combination with other intellectual and industrial property rights, and active market monitoring to detect and document potential imitations.
In this context, specialised legal advice is crucial. A tailored and professional approach enables the design and implementation of an industrial design protection strategy aligned with the company’s commercial objectives, in compliance with applicable regulations and best industry practices, providing full legal certainty and strengthening the company’s strategic position vis-à-vis third parties in an increasingly competitive environment.
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