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Design rights protect the form, design, and appearance of a product for a maximum of 25 years in the Benelux or the EU. A condition is that the design must be new and have individual character. A form determined solely by a technical function does not qualify for protection — although the dispute surrounding the LEGO brick shows that this boundary is not always clear.
Design rights offer protection to form and product design: from a handbag to the design of a television screen. If something enjoys design protection, others may not simply copy it. The protection is valid for a maximum of 25 years and can be applied for in the Benelux or the European Union.
Not every design is protectable
For design protection, the design must be new and have individual character. A design defined solely by technical functions does not qualify — otherwise, someone could monopolize a product through a single visual feature, and competitors would no longer be able to bring it to market.
An example is the nozzle of a whipped cream dispenser: however unique the shape may be, it serves only to dispense the whipped cream properly and give it a nice swirl. Therefore, it cannot be protected by design rights — otherwise, no one else would be able to make such a can.
The LEGO brick: purely technical or something more?
Sometimes it is less clear. The LEGO brick has a distinctive appearance with bright colors and studs, but those studs also have a function: they are the only way the bricks stack securely. There has been a lot of discussion about their protection.
In 2010, LEGO attempted to register a shape trademark, which did not hold up; in 2015, they succeeded with the figurines because they are a recognizable character (both cases concerned trademark law, not design law). LEGO had previously held design protection for the brick, which bothered competitors. They lodged an action for annulment with the EUIPO (the EU Intellectual Property Office). The EUIPO ruled that the design is merely technically necessary and declared the design right invalid.
However, the European Court intervened (ECLI:EU:T:2021:155): the EUIPO had insufficiently investigated whether there were also non-functional features. For example, the smooth surface of the bricks was not taken into account, which is not necessarily functionally required. As a result, LEGO still holds a valid design for the time being — although this is certainly not the final ruling.
Frequently Asked Questions
What does design right protect?
The design and appearance of a product, provided it is new and has individual character. The protection applies for a maximum of 25 years, for the Benelux or the EU.
Can I protect a purely functional design?
No. A form determined solely by a technical function does not qualify for design protection, in order to prevent monopolization.
What is the difference between design law and trademark law?
Design rights protect the appearance of a product; trademark rights protect signs (such as names, logos, or sometimes shapes) that indicate origin. Sometimes both play a role, as with LEGO.
Protect your design and concept
Protecting a unique design keeps competitors at bay, but it is not always easy. The intellectual property specialists at MKB Juristen advise you and draft license agreements . Schedule a free consultation .
