I spoke to a client recently about registering his innovative designs to provide protection over his intellectual property, and he brought up concerns about the practical issues in enforcing a design. I’m sure we’ve all heard the horror stories – even if you have a design registered, what is to stop a big company from simply changing some minor elements of the design, such as its shape, and selling imitations of your product?
Sometimes it can seem like the odds are against small creators – companies with large pockets can afford imitate your design for cheaper, but registering has major benefits for creators – let me tell you why having your design registered will give you the upper hand, and why you should invest in getting registered.
1. Once your design is published, you can’t go back.
Many clients approach me, hoping to register their design for a product they recently developed and launched. However, unfortunately they can no longer register their design because it is no longer “new and distinctive”.
If you choose not to register your design, you can’t go back to a time where you can. It could be too late to think to yourself, I wish I had enforceable, tangible rights against copycats. Choosing not to register your design and publicising it can be a costly mistake.
2. Your design is the best design.
If you choose not to register your design, it may be copied exactly and you will have no enforceable rights against those who copy you. If your design is the best version of the design, then you still have a market advantage against competitors that make cheap imitations or altered versions of your design. You never know – perhaps your circular clock is more marketable and popular than a square one.
3. You’ll have evidence to back you up.
Take a scenario where your design is imitated by a big company and your letters of demand to that company regarding their infringement of your design have failed. Even if you choose not to take this infringement to court, by registering your design you still have evidence to be able to take your matter to the media and social media. You can also use this to your advantage to position yourself as the “original” or encourage potential customers to support independent businesses. There can be benefits in being the “underdog”, but make sure you have documented evidence to back up any claims!
4. Registration acts as a deterrent.
I know, you’ve heard this before –don’t underestimate the power of deterrence! Having a design registration can act as a deterrent to other businesses looking to copy or take credit for your design. You may believe that large companies don’t care about breaching intellectual property rights, but many do. Infringement claims or legal proceedings against them can seriously impinge on their good will.
Registering your designs means that if someone seeks to copy your design, they have to consider ways to get around your registration, and this can be difficult. It is a common myth is that simply changing the colour or pattern on a design is enough for an imitating design to be sufficiently different so as not to breach your design rights, but this is not always the case. Engage with a lawyer that you trust to draft your design application – whether or not another product is in breach of your design rights depends on how your application is drafted.
Why make it easy for copycats to take advantage of your hard work, when you have the option to make it far more challenging to better protect your intellectual property and your brand?