Trend changes in Europe
The change in attitude to furniture design has had a particular impact in Europe, where many global furniture design trends are set. The current industry trends are putting European manufacturers, in particular, at risk of having their designs replicated.
European manufacturers also face stern competition from countries having lower production costs. This, in combination with globalisation of the furniture industry, has put design at the forefront, shifting focus away from mass production to that of luxury furniture.
Why does IP protection matter?
A recent European Cultural and Creative Industries Alliance (ECCIA) report on the contribution of high-end industries to the European Economy states that Europe’s share now accounts for 70% of global sales of these industries. In this context, “high-end industries” includes 12 sectors of activities including furniture and furnishing and design household equipment.
Therefore, the design-focused nature of the industry, and its increasing importance, means that companies should consider protecting and enforcing the full suite of intellectual property (IP) rights as a matter of priority.
The often overlooked, and understated, design protection is taking on an increasingly important role. Around 16% of designs registered in 2018 at the EU Intellectual Property Office (EUIPO) related to furniture and household goods.
Design protection is a territorial right, like other forms of IP rights, and provides protection for the whole or part of the appearance of a product. Designs can be registered, requiring an application to be filed at the relevant government office, but unregistered design rights also arise automatically upon creation of the relevant design in the UK and EU.
Registered and unregistered designs
The term of protection is longer for registered designs than for unregistered designs, and enforcement is simpler. In the case of unregistered designs, the claimant must prove that the rights exist, that it owns them and that a design was actually copied by the alleged infringer. For these reasons at least, registered designs are generally preferred.
To qualify for registration, designs must be new and have individual character and the end product must give a different overall impression to previously disclosed designs. In return, the registration can provide a monopoly right for the design for up to 25 years.
Who owns the design rights?
The shift to luxury furniture has also resulted in external design consultants being engaged by manufacturers, to create special editions or limited lines. This brings ownership of designs into the spotlight. By default, under both UK and European design law, the person who created a design owns the rights to it, unless the design is created by an employee.
Consultants are regarded as independent parties, unless otherwise agreed. As such, the rights in any such designs should be assigned from the consultant to the company. This can be critical to ensure both that continued use of the design by the manufacturer is allowed, and that the manufacturer has the ability to enforce any IP rights associated with the design.
Another consequence of the high-value nature of goods in the luxury furniture segment is counterfeiting. Counterfeit products are produced with the intent to take advantage of the value of an imitated product, with the intention to deceive or defraud.
Whilst simple copying of a design does not constitute counterfeiting, some of the remedies available for counterfeiting are available for designs. For example, items suspected of infringing design registrations can be recognised relatively easily by UK border officials, and seized on entry into the country. Knowingly infringing a registered design is also a criminal offence, providing a further deterrent for would-be infringers.
The cost of design registration is modest, particularly in comparison to the potential damage that can be caused by the theft of a luxury furniture product design. Taking the time to develop an appropriate IP strategy can make all the difference.
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