Mistakes made when filing a design application can result in no design being registered. Or, a design may be registered, but it does not protect the desired features due to defective illustrations. Submitting defective illustrations can also lead to objections during the application process, with the Swiss Federal Institute of Intellectual Property requesting the design applicant to adjust the illustrations.
Below are five mistakes to avoid:
1. publishing the design before filing a design application.
When registering Swiss designs, the so-called novelty is required, even if this is not examined by the Swiss Institute of Intellectual Property during the application procedure. For example, a design is no longer new if it has been shown to the Swiss public at a trade fair/exhibition/online prior to filing, or if it is already being sold.
2. the design is not filed/registered at the right time
When registering a design, the timing is crucial! If it is registered too early, it will be published in the publicly available databases before the corresponding product has been launched. However, it must also not be filed after a publication, because otherwise the novelty requirement is no longer met. A design specialist can advise you on the correct timing and assess whether a deferral of publication of the design should be requested. In many countries, during the registration process, it is possible to request that the publication of the design be postponed for a few months.
3. the design registration does not adequately reflect the actual product design
If a design registration poorly reflects the concrete product design, this may lead to difficulties in enforcing the corresponding design.
4. a product design is sold, but no design registration has been filed.
If a product design is not registered as a design before it is published or if a decision is made not to do so, this decision is often regretted later, namely as soon as a product becomes commercially successful and imitation products appear. At that point, however, a design filing can no longer be made because the requirement of novelty is no longer present.
5. you do not enforce your rights
There is no design police! It is up to you to ensure that none of your competitors infringe your design rights over a longer period of time. If a third party uses or registers a design that is confusingly similar and no action is taken against it, the design rights can at best be forfeited after a certain point in time. After that, it is no longer possible to successfully take action against it. It is therefore important to involve a design specialist immediately upon discovery of a potential design infringement in order to evaluate the best course of action.