Companies are investing in their visual identity to differentiate from competitors. This investment needs protection and design registration is the key to protect the physical appearance of a design.
Several other rights than design registration may be available for product design protections such as copyright, trademarks in form of shape marks/3D marks, unregistered design rights and regulation as to trade dress, unfair competition law and passing off.
Challenges in protecting your design as a trademark or claiming copyright to the design
The available IP rights can be cumulative, but design registration must always be considered, having focus on the differences in these rights. While copyright requires originality and creativeness, which requirements may be very difficult to prove, not least when AI have been used in the process, these requirements do not apply for designs, where the process of creation is irrelevant. Instead, design protection requires novelty and individual character.
Trademark registration in the form of 3D trademarks is in principle also an option to protect a product design. However, such trademark rights have proven very difficult both to obtain and to enforce. The requirement for trademarks to have distinctive character seems extremely difficult to prove for 3D trademarks preventing such rights to be registered.
Design registration
While the option of claiming unregistered design rights exists within the EU, such unregistered rights are limited in protection both in time, scope and geography. They may be easy to challenge, and documentation of such rights can be difficult to obtain.
Therefore, registration of design rights is highly recommendable. While such rights may be acquired through national or regional authorities, companies around the world and across a wide variety of business sectors have found the international design system, WIPO’s Hague system, to be a very useful tool for filing design applications covering multiple territories. According to recent figures published by WIPO, such international applications via the Hague System increased by 9,4% in 2025 and the number of designs contained in the applications grew in 2025 to a record number of more than 28,000 designs.
Using the international design system indeed comes with many advantages. The international application can be filed electronically and may include up to 100 designs in the same Locarno Class. There is no requirement for a preliminary basis application as is the case for international trademark applications and no local agents are involved in the filing process.
However, it is important to note that there are differences in the requirements across jurisdictions as to both local requirements for protection, examination procedures, renewal processes and period of validity.
Novelty is a key requirement for design protection and requires that the design has not been disclosed prior to the application/priority date. Most member countries of the international design system recognize a so-called “grace period” prior to the application/priority date, during which self-disclosure of the design does not affect the novelty; however, the existence and scope of grace periods vary between the countries.
And while the authorities in e.g. EU and Switzerland only perform formal examination of the design application, other offices such as in Japan and USA perform substantial examination as to novelty and individual character before grant of registration. In the US, where designs are being considered as design patents, the designs are further met with requirements such as non-obviousness.
Consider and be prepared before filing
Considering the differences in law and practice in the member states of the Hague system, the best approach is to carefully consider both the design and the jurisdictions of interest before the filing of the international application.
Early filing is generally advisable, and design applications should preferably be filed before any public disclosure, particularly as some jurisdictions do not provide for a grace period. Where disclosure has occurred prior to filing, local counsel may be consulted to assess if such disclosure affects the design protection considering the relevant local design law.
Also, online tools such as WIPO’s Hague System Member Profiles may be consulted where information on local requirements may be found.
While the differences in the national requirements should be taken into consideration, using the international design system proves to be a popular and convenient way to register and thereby protect designs.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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