In today’s business environment, where a product’s visual identity often plays a key role in consumer decisions, the protection of industrial design is becoming an increasingly important aspect of intellectual property. Although often overshadowed by patents or trademarks, industrial design is a legal mechanism that allows rights holders to protect the unique appearance of their products, thereby gaining a significant competitive advantage.

What is industrial design?

The Law on Legal Protection of Industrial Design (Official Gazette of the Republic of Serbia, Nos. 104/2009, 45/2015, and 44/2018 – other law) (“Law”) defines industrial design as the three-dimensional or two-dimensional appearance of the whole product, or part of it, determined by its visual characteristics, particularly lines, contours, colors, shape, texture, and/or materials from which the product is made or with which it is decorated, as well as their combination.

Thus, industrial design refers to the external appearance of a product or its part, only its aesthetic appearance, not its technical aspects or functionality.

Consequently, design covers a wide range of products, such as packaging, furniture, clothing, and automobiles, as long as protection relates solely to the external appearance of the product.

How to Protect Industrial Design

In most countries, including the Republic of Serbia, industrial design is protected through registration with the competent intellectual property office. The registration process involves submitting an application to the office, providing representations and descriptions of the design, and paying the appropriate administrative fees.

To be successfully registered, a design must meet the following conditions:

• Novelty – an identical industrial design mustn’t have been made available to the public before the date of filing the application or there must be no earlier filed application for an identical design that has been made public;
• Individual character – the design must produce a different overall impression on an informed user compared to any other design available to the public before the filing date or recognized priority date, depending on the designer’s degree of creative freedom.

Who can file an application?

Applications for the protection of industrial design may be filed by domestic or foreign natural and legal persons.

Primarily, the right to file belongs to the author of the industrial design or their legal successor. If the product was created within an employment relationship, the right to file belongs to the employer, provided there is a valid legal basis for the application.

Duration of protection

Protection lasts five years from the date of filing the application.

The holder of industrial design rights may renew the protection every five years, up to a maximum duration of 25 years from the date of application.

The importance of industrial design protection

Investing in design often requires time, creativity, and money. Without proper legal protection, there is a risk that someone could copy a product’s appearance and place it on the market as their own, undermining the original producer’s market position and causing direct financial loss.

By registering industrial design, the rights holder obtains the exclusive right to economically exploit the design and prohibit others from using, copying, or imitating it without authorization.

Distinction from other intellectual property rights 

Industrial design should be distinguished from copyright, trademarks, and patents.

• Copyright – since industrial design protects the external, aesthetic appearance of products, confusion may arise regarding which right applies. However, copyright protects works of art (literary, scientific, etc.), while industrial design protects creations that can be industrially or artisanally produced. Although copyright does not require registration and lasts longer (for the author’s lifetime plus 70 years after his death), industrial design provides a more reliable protection base in case of infringement because registration is mandatory.
• Trademark – industrial design protects the external appearance of a product and allows it to be distinguished from others, whereas a trademark protects signs that distinguish one entity from another in commerce. However, dilemmas sometimes arise over whether a shape constitutes a trademark or a design (e.g., the 3D trademark of Toblerone chocolate). Unlike design protection, trademarks can be renewed indefinitely if renewal applications are filed on time.
• Patent – a patent protects functional or technical aspects of a product (a process, manufacturing method, chemical composition, software solution, etc.), while industrial design protects the product’s external visual appearance, which is not determined by its function.

Due to the differences in protection scope and duration, it is crucial to determine early in the product development phase which type of intellectual property best suits the specific case to ensure appropriate legal protection aligned with the rights holder’s interests.

International protection of industrial design

If an applicant who has filed a national design application intends to export or market the product abroad, they should consider protecting the design in other countries where they plan to operate.

In international protection, the applicant enjoys a six-month priority right from the date of filing the national application. This means that a foreign application filed within this period will be considered as filed on the same date as the domestic one.

There are three main routes to international industrial design protection:

• National application – filing separately with each national intellectual property office. This can be costly and impractical if protection is sought in multiple countries, as each office must be contacted individually and fees paid separately.
• Regional application – filing with a regional intellectual property office to obtain protection in multiple member countries through a single application (e.g., the Benelux Design Office – BDO – covering Belgium, Netherlands, and Luxembourg).
• International application – filing under the Hague Agreement Concerning the International Deposit of Industrial Designs through the World intellectual property organization (WIPO). This is simpler and more cost-effective, requiring only one application and one fee, the amount of which depends on the number of designated countries.

Conclusion

Industrial design provides effective legal protection for the aesthetic appearance of products, enhancing market position and brand recognition. Understanding the differences between industrial design, patents, trademarks, and copyrights is crucial for choosing the right form of protection. Registering designs domestically and internationally can be a key step in product development and marketing strategies. Therefore, it is important to consider design protection early in the product development phase.

This article is to be considered as exclusively informative, with no intention to provide legal advice. If you should need additional information, please contact us directly.