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As a designer, your ideas directly translate to your business profit. The distinct appearance of the product designs you create adds to the worth of your brand. If someone else starts selling products or images with your distinct design, this can confuse customers and detract from your business. To avoid this, you can register your designs as your intellectual property. You can get exclusive rights over your designs, which means you have legal action against someone who tries to copy them. There may also be other intellectual property protections that apply. This article, for some guidance, will explain how you can stop others from copying your designs as a designer.

How Do Design Rights Work?

Intellectual property rights protect creations of the mind or ideas that you come up with. Many kinds of rights function differently according to what exactly they protect. One of these, designs, are a kind of intellectual property right. It protects against others using (or copying) them without your authorisation. 

This intellectual property right specifically protects the visual appearance of an object or article against misuse. Note that this only applies to the external appearance of a product that you manufacture, particularly if there are distinctive or unique features. A design can be in two or three dimensions.

For example, you can register design rights for the distinctive and unique pattern of the clothes you design.

However, there are some restrictions as to what you can protect with design rights. These include:

  • purely functional designs;
  • works of sculpture;
  • wall plaques;
  • medals; and
  • printed matter that you use for primarily literary or artistic purposes, such as greeting cards.

Registering Your Design

To register your exclusive intellectual property right over your design, you need to register it. You apply to the Intellectual Property Office of New Zealand (IPONZ) and pay the necessary fees. They assess your application to see if it meets their requirements. Your application needs to include:

  • representations of your design from multiple angles, such as sketches or photos;
  • a statement of novelty;
  • a title for your object/article;
  • your name and contact details; and
  • a completed application form.

You can only get registered design rights if your design is new and original. Therefore, you cannot have sold this design before you apply for intellectual property rights. In your statement of novelty, you outline what makes your design new and original, such as its distinct:

  • shape;
  • configuration;
  • ornamentation; or
  • pattern.

For example, say that you sell cutlery with a distinct and unique shape. After selling this cutlery under your brand for a year, you decide to register it as a design. However, your design is not new because you have been selling it. Therefore, you are not eligible for registration.

Apply for design protection with plenty of time, as the application process can take up to six months to complete. You also need to pay a $100 fee. 

What Do I Do If Someone Copies My Design?

When you have registered your design, you have various legal options to stop someone else from copying your design. You may be able to get compensation for what they have already done as well. 

If you find someone has copied your design, contact them first and let them know you have registered your particular design and ask them to stop. If they do not, you can seek legal advice about your avenues for potential legal solutions.

It is best to document any copying of your design that you see. Take screenshots or photos, and keep any infringing material as evidence. You need to be able to show that the copied design does not materially differ from your registered design. Having concrete examples will make this process much easier.

Copyright Protection

If you cannot register your design, you may have other kinds of intellectual property protections available against imitators, depending on your situation. Copyright is an inherent intellectual property right that applies, from creation, to:

  • literary, dramatic, musical, or artistic works;
  • sound recordings;
  • films;
  • communication works; and
  • typographical arrangements of published editions. 

If you can prove that someone has copied your design and infringed on your copyright, you have legal options available. These include civil remedies, such as getting an injunction stopping them from copying any further.

However, copyright only protects against others copying your work, not taking inspiration from it, leading to similarities. For copyright infringement, you need to provide evidence that they have actually copied your work. This is harder to prove than what you need to do to show infringement of your registered design.

Key Takeaways

If you are a designer who wants to protect your new designs against unauthorised copiers, you can register them to gain exclusive intellectual property rights. Then, you can legally pursue anyone that produces a design that copies yours, as long as you can prove they do not materially differ. If you do not register your design, you may be able to rely on copyright to stop others from copying your designs, but this is harder to prove. If you would like more information or help with preventing copying of your designs, contact LegalVision’s intellectual property lawyers on 0800 005 570 or fill out the form on this page.

Frequently Asked Questions

What is a design?

A design is an intellectual property right that protects the distinct visual appearance of your products. Examples include the unique shape of your product or a pattern.

How can I stop others from copying my designs?

If you have registered rights in your design, then you enforce those rights. If you do not, you may be able to rely on copyright instead.

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