Protection of designs: copyright law or specific design law?

Designs are indeed eligible for double protection, and it is not always easy to be exhaustive by phone on this rather technical matter. However, we can provide you with useful legal information. If you need a more detailed and personalised legal consultation, we can refer you to a specialised partner firm.

You can protect designs with copyright law on the one hand (1), and/or with an industrial property title on the other hand (2).

1 – Copyright law #

As soon as your creations are original and materialized, they are protected by copyright law by the mere fact of their existence. However, it is essential to obtain proof of anteriority to be able to prove that you are the author at a certain date, particularly in the event of a copy or future challenge by a competitor. The filing provides an indisputable proof of anteriority owing to the intervention of a Bailiff (if selected) but also by virtue of our qualified electronic timestamping providing evidential value on the international level (see our sheet: Legal value of the qualified electronic timestamping compared to others)

The advantages of copyright protection: simplicity of the proof process (5 files for 1 deposit on with unlimited additional deposits), legal duration of protection for the life of the author and 70 years after his/her death, valid internationally in at least all the contracting parties of the Bern Convention (+177 countries), allows proof of anteriority while maintaining the secrecy of a creation, for example throughout the development process.

Computer files resulting from computer-aided design (CAD) are also, by themselves, protectable by copyright law like any other digital work if they are original and materialized in a file. The deposit, timestamped by a bailiff, is perfectly adapted for this type of file, notably due to the high storage capacity provided by the deposit.

2 – Industrial property title (at the INPI or EUIPO) #

The criteria are different and more delicate since it is possible for any competitor to subsequently cancel a protected design if he or she demonstrates that it did not initially meet the legal criteria (since the French National Institute of Industrial Property (INPI) does not examine the merits). These criteria, which may be difficult to understand, can be consulted here:

The advantages of protection by industrial title: like copyright, the sanction is the infringement action. The cost of filing is low (something that can be put into perspective since the opening this year of our service with our partners, the Bailiffs). Finally, the industrial title deposit can be considered as a proof of anteriority for copyright (allowing double protection), but the risk is then that the deposit may not be given a probative value in other countries, contrary to our timestamping which is automatically recognised at least in all the countries of the European Union (cf. documentation on the probative value at international level).

Disadvantages: short duration of protection, criteria of prior non-disclosure or “proper character”, impossibility to protect computer files resulting from computer-aided design (CAD), and if filed with the French National Institute of Industrial Property (INPI), the protection is only valid in France.

In conclusion, we note that many of our professional creators prefer to use copyright and proof of anteriority for reasons mainly linked to:
– its international character
– the duration of copyright protection
– the possibility, in the case of numerous derivative creations forming part of the same creative ensemble, to make simple additional deposits
– our image incorporation technology, developed during a year of research and development, allows up to 5 visuals to appear in the certificate itself.