A time for designs?

In today’s fast-paced business landscape, intellectual property (IP) protection is crucial for safeguarding innovation and securing investment.  In this article Two IP patent attorney Neil Kilpatrick explores the growing importance of design rights and highlights how businesses can leverage design protection to deter copycats and maintain a competitive edge.

If Dragon’s Den has given the UK public anything, it is the awareness that IP is crucial for securing investment and protecting businesses. Almost every enquiry I receive, from clients new and returning, focus on whether, and how, their latest innovation can be patented.

But in reality, not all products are new and inventive enough to meet the patent threshold. Other innovations, such as software or artistic creations are excluded from patent protection. Even for the best inventions, the patent process is a multi-year journey, with an often uncertain path towards protection. And of course if the idea has already been disclosed then a patent can be dead on arrival.

Fast fashion, or first follower?

Patents don’t suit all businesses. Whilst a patent covering product fundamentals is still the best way to secure market share, product innovation has become more and more focussed on the yearly update, the killer new feature, the brand refresh. IP filings are reflecting this trend. Patent filings are broadly flat over the past few years, whilst registered design filings are up 1154.9% between 2015 and 2023.1

Design, prepare, protect

Designs protect how a product looks. They are the perfect tool to deter and stop pure copycat competitors. Being a valid and issued IP right, they are a powerful tool for IP takedown action on the key online marketplaces.

The design system is flexible and made with business in mind. For the UK (and the US and Europe at least), designs can be filed up to 6 months after being disclosed. The process itself is also fairly straightforward and quick compared to patents. Produce the required formal drawings, submit the request and pay the (reasonable) official fee, address any formal objections, and receive an issued certificate. Timescales of weeks (c.f. years for patents) from start to finish provide quick business certainty.

Practical Tips

Up, down, left, right, top, bottom, and perspective. These are the standard typical views needed for a successful design filing. Consistency is key here – there can be no ambiguity between what is shown in one view and visible in another. Accordingly, the best design drawings are generated straight from the CAD file, albeit for designs we want technical line drawings. A technical draughtsman and attorney input here pays dividend in the long term.

The next question is what to show, what to emphasise, and what to omit. Is a particular colour key? Or are we interested in the colour contrast? Omitting all colour is broadest, but a blank box is not likely to be valid. Similarly, features can be emphasised or ignored by using dashed or dotted lines to disclaim elements.

Multiplicity

All the questions above give many branching options for what a design is focussed on protecting. Each design is a compromise between breadth and validity, and can’t do everything all at once. The design system knows this and has been set-up to encourage multiple design filings made together by tailoring the fee structure in this way. One design can emphasise features on the front of a design, a second features on the back, a third the overall shape or colour, etc. By building a thicket of protection around your core product you stop not just full copycats, but also companies who “take inspiration” from your ideas.

Enforcement

With your registered design you can now use it to protect your commercial advantage. Designs are powerful tools because they shift the onus for proving copying to the defendant. “Prove you didn’t copy my registered design” is a much harder question for a competitor to answer than any broad accusation that they did copy. Also, being a registered right, they are easy to use for online-marketplace takedowns, which are a powerful tool for quickly blocking the sales of competitors.

1. https://www.gov.uk/government/statistics/facts-and-figures-patents-trade-marks-designs-and-hearings-2023

If you would like further advice or support, please get in touch via our website here or email us at hello@two-ip.com.

Bands and brands – Two IP trade mark attorney Rachel Havard reports from the field … literally!

As this summer’s music festival season draws to a close, Two IP trade mark attorney Rachel Havard has some observations on how two significant influences in her life – festivals and trade marks – are becoming more intertwined.

In my 20s and 30s, I was a regular at Glastonbury Festival, back when it was easy to get tickets for a big group of friends, friends of friends and hangers-on, and it didn’t used to sell out.  With focus on worthy causes rather than brand placement, it did not feel at all commercial.  Rather, you were transported to another land, even another time, for those few glorious (and sometimes rather muddy!) days around the Summer Solstice. 

Some lovely festivals, like the Phoenix, sadly folded because there were too many festivals and not enough interest.  These days, Glastonbury is on everyone’s bucket list, and just getting tickets for you and your closest friends can be as likely as winning the Lottery.  Once again, though, festivals are everywhere!

Small bohemian festivals, which we’ve happened upon by chance, have been the most fun.  The excellent Maui Waui Festival, which began in Suffolk and now moved to Norfolk, is about as far away from corporate as you can get, offering a magical escape from a world which can seem driven by consumerism and big brands. But festivals cost so much to stage.  Our own village runs a great little music festival for around a thousand people each year, but could not do so without the sponsorship of local businesses, and to support charitable causes as well.

For my last summer festival of this year, I joined my teenage daughter for All Points East in London’s Victoria Park, presented by Uber One.  This was a very different experience, where my day job as a trade mark attorney and my passion for a good festival merged together.  From the free cans of Coke Zero handed out to several thousand of us as soon as we walked through the gate, the 19 Crimes themed area, to the sponsored stages, including Amex Unsigned and L’Oreal Paris branded stages, and the enormous Cupra branded tent housing one of the main stages, brands were everywhere, just as they are in the real world.  

But did this detract from a damn good day out?  Absolutely not!  Big brands are wise to what a good promotional opportunity festivals can be.  So many people now want to experience festivals, and exposing them to brands when they are at their most relaxed and happy is great for reinforcing the distinguishing power of those brands.  

As for the bands: Sir Chloe, Wasia Project, TV Girl and Towa Bird were my highlights – best not mention that most of them were small children (or not yet born!) back in my own twenty-something Glasto days.  

You’re never too old for a good festival, or to discover new music.  And personally, I don’t mind a trade mark or two to jolly it all along.

If you have any questions about your own trade marks, branding and IP protection, please do get in touch with us hello@two-ip.com, or visit our website at www.two-ip.com.