EU design protection after a product launch
A photograph of a new product may circulate before the business has decided whether to register its appearance. Under EU law, disclosure can start a period of unregistered protection and affect the possibility of filing later. The decision depends on two dates, evidence of what the public saw, and a choice about which features to protect.
What EU design protection covers
Since 1 July 2026, Regulation (EU) 2026/715 has codified the rules on European Union designs and replaced Regulation (EC) No 6/2002. The shape of a lamp, a textile pattern or the outline of packaging are examples of features of appearance to examine. Article 9 excludes features dictated solely by technical function.
Articles 5, 6 and 7 require novelty and individual character. Novelty is assessed against identical designs disclosed before the relevant date. Designs that differ only in immaterial details count as identical. Individual character involves comparing the overall impression on the informed user and taking the designer’s freedom into account.
Three years from first disclosure in the Union
If the requirements are met, Article 12 starts the three-year period of unregistered protection at the first public disclosure in the Union. An exhibition or the circulation of a catalogue may count if specialists active in the EU could reasonably have become aware of it in the ordinary course of business. A disclosure to a third party subject to confidentiality remains confidential in itself.
In its judgment of 13 February 2014 in Gautzsch Großhandel, Case C-479/12, the Court of Justice identified circulation of images to traders in the sector as a circumstance that can show the design could have become known. The court hearing the case assesses the facts. The judgment interpreted Article 11 of the former regulation, which corresponds to Article 12 in the current text’s correlation table.
What to document when challenging copying
For an unregistered design, Article 20(4) makes protection depend on copying. Independent creation rules out copying where the designer can reasonably be thought to have been unaware of the disclosed design. In Case C-479/12 the Court placed the burden of proving copying on the holder. Where that burden makes proof impossible or excessively difficult, the court must use the procedural measures available under national law.
To reconstruct the circumstances, it helps to retain original images, catalogues as distributed, accompanying correspondence and trade fair records. For the disputed offer, retain clear images and details identifying the page, date and trader. These materials help compare the shapes and assess when the second designer could have seen the first product.
Filing after disclosure
The grace period in Article 8(2) and (3) concerns registration. For novelty and individual character, it allows certain disclosures attributable to the designer or successor in title, or resulting from abuse, to be disregarded within the twelve months before filing or any priority date. The origin of the disclosure and the relationship between what was shown and the design to be filed need to be established. Independent earlier disclosures by third parties still require examination.
The filing timetable should therefore be considered separately from the duration of unregistered protection. Waiting until the three years have ended can put the first disclosure outside the grace period. For a product intended for several markets, the decision should also account for the rules of the countries where protection is sought.
Registered protection starts on registration with the EUIPO. Article 13 provides for an initial five years from filing and renewals up to twenty-five years in total. For a registered and published design, the exclusive right can also reach independent creations within its scope, subject to the regulation’s limits. The features visible in the filed representation are therefore crucial to identifying what is protected.
A hypothetical example at a design fair
Suppose a business presents a lamp at an Italian trade fair and gives retailers a catalogue with views from several angles. A similar product appears two months later. The catalogue helps identify the features retailers could have seen. Its distribution date and evidence linking the competitor to the fair can help establish the sequence.
In this example, the fair may mark the start of unregistered protection if it is the first qualifying disclosure in the Union and the design meets the requirements. Filing calls for a separate check of earlier disclosures, the relevant date and the shape to be represented. The similarity of the second product is one part of the comparison, to be considered alongside evidence of its origin.
Documents to prepare
A useful file ties each version of the design to its publication history. Before deciding whether to file or raise a challenge, the following materials can be assembled.
- A timeline of presentations, with their locations, recipients and confidentiality terms.
- The images actually circulated and the original versions from which they were taken.
- Design commissions and agreements that help establish ownership.
- A search for earlier designs and a list of the markets and variants to assess.
Sources and references
Informational article prepared with assistance from artificial intelligence tools. It does not replace assessment of the specific case. Legislation and guidance must be checked against the relevant date and facts.