Looks matter: Why you should include design in your IP strategy

How design complements patents

A patent protects technical solutions – how something works. This can be crucial, but it also has limitations: not everything is patentable, and in some cases the claims may become narrow because the scope of protection depends on the wording of the patent claims. In addition, a competitor can in some cases design around a patent by adjusting technical details while still launching a product that looks very similar on the market.

Here, design rights can be a very useful supplement because they protect the visible result of product development. Even when two products are technically different, it is often the visual similarity that creates confusion for consumers. By combining patents and designs, you therefore obtain twofold protection: the patent prevents technical copying, while the design prevents market imitation (lookalikes). It also gives you a better negotiating position in licensing and disputes, because you can rely on multiple legal bases.

How design complements trademarks

Trademarks build recognition and trust: names, logos, slogans, and other identifiers that distinguish you from competitors. But if you want to protect the shape or appearance of the product itself as a trademark, the threshold can be high. This is particularly true where the shape is dictated by function, or where you must prove that the shape alone is perceived as an indicator of origin in the market (acquired distinctiveness).

Design protection often fills this gap. Where your trademark protects “who” the product comes from, design protects “how” the product looks. For many, this combination can be strategically very successful. The trademark supports long-term brand building, while design registrations give you clear, enforceable protection against imitation of the product’s expression – especially in the phase where the shape has not yet become established as a trademark.

Design as a bridge between technology, brand and market

The value of design rights often lies in the practical: you protect what customers actually compare, click on and buy. In a holistic IP strategy, design can help you to:

• ·Strengthen differentiation: ensure that investments in product design, user experience and visual identity are not eroded by copies.
  
• ·Reduce the risk of circumvention: where competitors change technical details (patent) or avoid brand identifiers (trademark), but keep a similar overall appearance.
  
• ·Strengthen enforcement: design often provides an intuitive basis for comparison and assessment of overall impression, and can be an effective basis in dialogue with counterparties and market actors.
  
• ·Increase portfolio value: several complementary rights give you a better risk profile and a more attractive basis for investment, partnerships and acquisitions.

How to incorporate design into your IP work

To realise the value, you should consider design early, preferably before launch and broad disclosure. This is both about identifying which parts of the product create distinctiveness, and about choosing a protection strategy that fits with your patent and trademark work. Equally important is to carry out thorough clearance searches so that you uncover whether the intended design (or something that creates the same overall impression) already exists on the market. This reduces the risk of objections, conflicts and costly detours, and helps you avoid ending up in the very situation you want to protect yourself against: being the one copying a competitor.

In practice, this often means looking at the product as a whole: What is the core innovation (patent)? What are the key identifiers (trademark)? And which specific visual features are competitors most likely to imitate (design)? When you plan this coherently and at the same time quality-assure the design through solid searches, design can become the glue that ties your IP portfolio to the market’s demands and expectations. Then you protect not only the idea, but also what actually sells.

How Bryn Aarflot can assist

Bryn Aarflot helps you integrate design rights into a holistic IP strategy, so that design, patents and trademarks complement each other and provide the best possible commercial effect. We can help you clarify what should be registered as a design, how registrations should be delimited and structured, and how this should be coordinated with patent and trademark processes in relevant markets. We also assist with portfolio management, monitoring and enforcement against imitations – with the aim of securing and increasing the value of your intellectual property rights.