If you don’t protect your design, other people will help themselves to it

I don’t attach much importance to it myself. My coffee machine and a parlour game are all I need to be perfectly happy at home. But yes, working for the IPI has given me a different perspective on goods in shops. I look more closely and occasionally discover a product that we recently registered for design protection.

Design is added value, a status symbol and a distinguishing feature all in one. Consumers are prepared to spend more money for good designs. Just think of designer furniture from manufacturers that have made a name for themselves for their goods. This means that protecting designs is all the more relevant.

Making an entry in the design register can protect you from free riders. In Switzerland, you can do this at the IPI or the World Intellectual Property Organisation (WIPO). It’s up to design owners to enforce their rights, however. They need to check for themselves whether someone is infringing their protection. To do so, they can do a search in public databases or survey products on the market.

If the parties are unable to reach an agreement, legal proceedings are initiated. The following aspects, among others, are decisive:

1. Unless the other party can provide evidence to the contrary, it is presumed that no identical design was known and available to the public at the time of filing.
2. The court presumes that essential features of the protected design differ from previously recognised designs.
3. Finally, it is presumed that the design owner was authorised to file the design.

Due to these legal presumptions, the design owner is in a much stronger position than the opposing party, who has to prove the contrary in court proceedings. To emphasise this once again, the court presumes that the applicant has the right to the design.

Alongside the legal aspect, the protection afforded to inventions and creations is also relevant for potential investors. They check whether a company holds patents, trade marks or designs. Customers have confirmed to me that protection is like insurance for investors and makes commercialisation possible.

Design protection primarily applies to the appearance of a product and not its intended use. It covers the content of the images submitted to the IPI together with applications. Only designs that have been deposited are protected and defendable. I like to provide an example. In the early days of their company, the Freitag brothers came to the IPI seeking to protect their material. You can’t do that with design protection. You can’t protect the fact that they make bags out of used truck tarpaulin. But you can protect the appearance of the products.

The design must be new at the time the application is made. We don’t check this, but applicants should carry out a search in databases or specialised publications to ensure that this form and design do not yet exist. The golden rule is: first protect your product and then sell it. Then you have something in your hand if you are suddenly copied.

The quality of the images is central to design protection. The representations submitted with the application illustrate what is to be protected. If the design is protected in colour, the scope of protection will be limited to the selected colours. If you register a red armchair with a colour photo, this armchair will only be protected in red. If, on the other hand, you file a design in black and white, the object will generally be protected for all colours. In addition, the object should be shown neutrally, that is without any other objects in the photo. In short, the protection applies to exactly what is shown in the images.

I remember one story particularly well. An elderly lady wanted to protect the design for her napkins. On the phone, I got the feeling that her application was about more than just design protection. She told me that she’d been unable to do an apprenticeship or go to college. The application meant a lot to her – it would be the first certificate she had with her name on it.

We produced her design protection certificate with all kinds of priority documents and stamps to emphasise its official character. After receiving the certificate, she called me and thanked me tearfully. We all found that very moving. It made us realise that we should never forget we’re dealing with people. They’re our customers.