FRKelly Designers Handbook
Shape The shape of a product is a very commonly protected feature. Shape often becomes an important identifying aspect of a product which requires robust protection. Design rights are an excellent way of obtaining such protection. Bear in mind that it can be very difficult to obtain trademark protection for the shape of a product due to the requirement that a valid trademark must be distinctive. Material The material of a product is protected to the extent that it can be seen; the physical feel of a product cannot be protected. For example in the case of the dress opposite, it is the appearance that the velvet material gives the dress that can be protected; not the use of velvet as a design feature. This means that a design which appears identical to this dress but is made from a different material may infringe its design. Texture Similarly the texture of a product can be protected insofar as it can be visually perceived.
Paul Smith’s signature rainbow stripe.
Colour Protecting a design made up of a combination of colours is possible. A complex pattern made up of colours is protectable. For example Paul Smith’s signature rainbow stripe design (opposite, above right) is a registered Community design that would meet the definition of a design.
Lines, contours, colours, shape and texture are features that are protectable as a design
What does not qualify as a design? There are certain features that fall outside the definition of a valid design. Anything that does not pertain to the visual appearance of a product is not a feature of a design. A smell or fragrance cannot be registered as a design; neither can sounds or a sensation. Some of these exceptions cause similar difficulties in other areas of intellectual property law — for example a fragrance is not registerable as a trade mark as it cannot be graphically represented. Others however can find alternative protection; a sound (usually represented by musical notation) can be the subject of a trademark registration.
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