Term of design protection

A registered design is protected for five years from the filing date, renewable for periods of five years up to a maximum of twenty-five years. The rule is laid down by Article L. 513-1 of the French Intellectual Property Code for the French right and by Article 12 of Regulation (EC) No 6/2002 for the EU design. The unregistered EU design is protected for three years from its first disclosure, with no possibility of renewal.

Starting point and renewals

Protection takes effect from the filing date, not from registration or publication, which matters where publication has been deferred. Each renewal requires payment of a fee to the INPI or the EUIPO before the current period expires, with a further grace period available after the due date subject to a surcharge. Renewal may cover all or some of the designs in a multiple filing, so that only the designs still being exploited need be maintained. Without renewal, the right lapses and the design falls into the public domain as far as design law is concerned, subject to any other rights that may subsist.

Early termination of protection

Protection may end before its term through surrender by the holder, entered in the register, or through invalidation of the right, which operates retroactively. For the unregistered design, the short three-year term is offset by the possibility of filing within twelve months of the first disclosure thanks to the grace period, with the registered right then taking over. It should be borne in mind that twenty-five years is a maximum: most industrial designs are abandoned well before then, renewal fees being justified only for products with a long commercial life, such as certain furniture, lighting or vehicles.

Cumulation with copyright and other rights

French law applies the principle of the unity of art (unité de l’art): a creation that is original is protected by copyright for the life of the author and seventy years after the author’s death, irrespective of any filing and beyond the expiry of the design. Cumulation is not automatic, each form of protection being subject to its own requirements, and the Court of Justice of the European Union requires genuine originality for copyright, not the mere existence of an aesthetic effect. In rare cases the shape may also be registered as a three-dimensional trade mark, renewable indefinitely, if it is distinctive and not excluded on the ground of technical function or substantial value. Beyond that, only unfair competition sanctions slavish copying accompanied by a likelihood of confusion or by free riding (parasitisme).

Key points

A registered design lasts five years from filing, renewable four times up to twenty-five years, and the unregistered right three years from disclosure. A renewal schedule should be kept, only the designs being exploited should be renewed and, as expiry approaches, it should be considered whether copyright or a three-dimensional trade mark can take over. Before bringing any action, also check that the renewal fees have in fact been paid.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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