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As a business owner in the UK, you must know the difference between different types of legal protection, so you can decide the right path to proceed on for protecting your product and brand. For instance, design rights and trade mark protection are types of intellectual property (IP) rights with very different uses. In essence, design rights protect the appearance of a product, whereas a trade mark protects an element of branding.
This article will discuss registered and unregistered types of protection to help you decide how best to secure your exclusive rights over your creative work.
LegalVision’s Trade Mark Essentials Guide provides valuable information for any business looking to register or enforce a trade mark.
What Are Design Rights?
A design right protects the appearance of a product, including the:
- shape;
- colour; and
- configuration.
In contrast, a trade mark is a brand identifier that distinguishes your brand from others. Further, it is not necessarily a direct image of the products that it sells.
Protections Provided by Design Rights and Trade Marks
A similarity is that both design and trade mark rights exist in both registered and unregistered formats. Concerning design rights, once an unregistered design is made public, its appearance is automatically protected for three years without any form of registration.
Similarly, trademarks can also receive some protection when unregistered. However, rather than an automatic protection, it is usually only an acknowledged protection when the trade mark gains a reputation with the public over several years, where the trade mark is associated with the brand. When making a claim against someone for using your unregistered trade mark, you should take this to court. This process is referred to as passing off.
Both design rights and trade marks have the option of registration, which provides much greater protection against other businesses copying any design or brand mark. In addition, IP rights will always be easier to enforce if your concept has been registered and therefore acknowledged as a part of your business.
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What Forms Do Design Rights and Trade Marks Take?
Design rights are focused on protecting the appearance of products. There is an automatic right of protection when a design is made public. Examples of protected things include the:
- shape;
- texture;
- material; and
- colours.
Trade marks, however, can take many different forms as they are a concept that relates to a brand. A non-exhaustive list of examples includes:
- sounds;
- slogans;
- words;
- shapes; and
- colours or any combination of each.
The Registration Process for Design Rights and Trade Marks
To register a design or a trade mark, each must meet a different set of criteria. For example, for successful registration, your trade mark must be unique. Furthermore, it must not be anything too common and must be distinctive. Similarly, to register a design, it must be new. Therefore, it also requires creativity from the applicant.
The time for a design rights application is eight weeks for consideration by the Intellectual Property Office of the United Kingdom (IPOUK). However, if there is an objection, the applicant can request a hearing, so this timeframe can vary. For trade mark applications, you should receive feedback within four weeks. However, opposition by the IPOUK can prolong the process.
On average, the process for trademarks takes around four months. With the renewal of intellectual property, there are stark differences between design rights and trademarks. For example, you must renew a design right every five years. Although, in total, its protection will last for 25 years. In contrast, you must renew a trade mark every ten years.
Key Takeaways
As a business owner, you must adopt the correct type of legal protection for your intellectual property. Therefore, consider the protection that registered trademarks and design rights can provide.
A design right focuses specifically on the appearance of a product and protects the aesthetic aspects of this. For instance, a design right focuses on shape and colour. However, a trade mark is a piece of branding and is not necessarily an image of what the business sells or the service it provides. Moreover, a trade mark can take many forms, including:
- sounds;
- slogans;
- colours; and
- a combination of any distinctive mark of the brand.
A trade mark is, therefore, a more diverse type of intellectual property protection. However, you should carefully assess both before determining the best for you.
If you need assistance registering a trade mark or determining the best IP protection for you, our experienced IP lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page.
Frequently Asked Questions
A trade mark registration protects a symbol, word, sound or anything chosen to represent a brand’s identity. In contrast, a design registration focuses on a unique product design which a business will produce.
You can not protect the functional features of a product under design rights. To protect this aspect of a product, it would need to be suitable for patent protection, which is a different form of intellectual property and requires the functionality to be a new invention.
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