Using other intellectual property rights to enhance brand value
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DESIGNS — THE TRADITIONAL POSITION Design protection in the UK used to apply to the appearance of articles which were made and sold separately. These articles had to have ‘aesthetic appeal’. However, this did cover original designs for packaging, such as new shapes for coffee jars or fabric conditioners. If a registration was obtained, then it could last for up to 25 years. Design registrations were cheap to obtain, but the protection was easily circumvented by designing around the key elements. The biggest drawback was that the design had to be new when the application was filed, and a separate application had to be filed for each design. This meant that applications had to be filed before market testing showed which was the best one to use.
DESIGNS — THE NEW REGIME Design law changed in the UK at the end of 2001 and a new design right covering the whole of the European
Community has been obtainable since the beginning of April 2002. The change in the underlying concepts means that it is now possible to register as a design almost any aspect of the appearance of an article, whether that is internal parts which can be seen while the object is in use, or aspects of packaging and get-up. A design may consist of colours, contours, textures or even the materials from which the product is made. This should mean that design protection is available for aspects of branding for which trade mark registrations are not available unless or until consumer recognition can be shown to regard those aspects of the get-up as a brand. Importantly for marketers, trade marks and logos can also be registered as designs. Although a design registration will only last 25 years, whereas a trade mark registration can be renewed indefinitely, this protection may last long enough for those products where there is an ephemeral quality to aspects of their branding which will change with fashions. Where 25 years is not long enough, it may give the brand owner time to establish that design as a free-standing brand. Care should be taken over how this is done, if the aim is to obtain a trade mark registration. Under the new regime, there is a grace period of 12 months, during which designs can be market-tested before a design application is made. Furthermore, a new Community-unregistered design right will give three years’ protection from copying across
HENRY STEWART PUBLICATIONS 1479-1803 BRAND MANAGEMENT VOL. 11, NO. 2, 109–110 NOVEMBER 2003
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USING OTHER INTELLECTUAL PROPERTY RIGHTS TO ENHANCE BRAND VALUE
the EU from the date of first publication. This Community-unregistered design right should not be confused with the existing UK-unregistered design right which gives protection from copying for up to ten years from first marketing (or 15 years from first conception, if shorter). In order to qualify for protection, the design must be new compared with what was previously known in the trade, and it must have ‘individual character’. This has to be assessed on a case-by-case basis but relates to the overall impression on an informed user. Th
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