A design is one of the types of intellectual property – this type of intellectual property refers to the design of various types of industrial products, such as furniture, toys, clothes, shoes, jewelry, kitchenware, and more.
As defined in the Patents and Designs Ordinance of 1924, a design is "character lines, shape, patterns or decoration that characterize each object by an industrial process or means, whether handmade or machine or by chemical activity, alone or in combination, conspicuous to the eye seeing the finished goods, and can only be ascertained by appearance, but this definition does not include any method or basis of construction or anything that is not in principle but a mechanical device."
Granting a design grants the owner a monopoly for a certain period of time on the design of a product, including preventing competitors from producing or marketing a product with the same or similar design. The goal of granting a design is to encourage designers and artists to create new designs – which can contribute directly and indirectly to industry.
Criteria for protecting a design
In order to protect a particular design, an application must be submitted to the Registrar of Designs to register the design. For the purpose of obtaining protection on a design it is necessary to meet various legal requirements, among which:
- The design should be innovative and original.
- The application should be filed by the owner of the design.
- Provide proof that the design had not been presented or published in Israel or on the Internet before filing the
- pplication for registration.
- The design is not merely the result of functional considerations, but developed out of esthetic considerations, too.
- The design should be distinct and appealing to the eye.
- The intention is to manufacture the design through an industrial process – the aim is to produce more than 50
- opies of the same design.
- The Registrar of Designs examines that the design indeed meets the specified requirements and, based on the examinations he/she conducts and their findings, arrives at the decision whether or not to grant the requested design.
A design registration is local (territorial), which means that the protection is limited only to the country in which the design is registered. If one is interested to obtain protection in other countries, he/she must tell his/her patent attorney and ask to file a design application in each one of the countries in which protection is desired.
Israel is party to the Paris Convention by which an owner of a design application may file design applications in the countries that are members of the Convention for up to six months from the date of the first application, and for the purpose of examination, the filing date of the first application will be considered the effective date.
What happens after obtaining the protection?
In Israel, protection for a design is granted for a period of 5 years. It is possible to extend protection of the design for two additional periods of 5 years – which means that the protection period can reach 15 years, subject to payment of renewal fees.
Scope of protection
According to Section 37 of the Patents and Designs Ordinance, as long as a right to a design exists, no individual is allowed to take the following actions:
(A) to appropriate, for the purposes of selling, the design or any fraudulent imitation or obvious imitation thereof applicable to all objects included in the class of goods for which the design is registered, unless he/she has a license or written permission from the registered owner, and he/she is not permitted to do anything that would allow him/her to appropriate the design as stated above; or
(B) to advertise merchandise or offer it for sale, if he/she has knowledge that the merchandise appropriated to the design or any imitation thereof, whether imitation out of deception, and whether the imitation is conspicuous, without the consent of the registered owner.
If a design infringement takes place, the design owner can sue for compensation and also file an injunction.