A design can be two-dimensional or three-dimensional. For example, the appearance of a food processor can be subject to design. Similarly, a fabric or carpet pattern may also be the subject to design. Even a part of a product may be subject to design. Like the headlights of a car or the door handle of a refrigerator. A design must have a new and distinctive character in the world in order to obtain a protection application for intellectual rights.
If a design is as far as anyone knows and new in the world, it provides a requirement of design protection. The innovation implied is that the design has not been released before. For any reason, it shouldn’t be more than 1 year after releasing cases such as fair, exhibition etc.
If a design is different from its counterparts, it has a distinctive feature. Distinction expresses that there is a clear difference between the overall impression of a design on the informed user and the overall impression of any design on such a user. In the evaluation of the distinguishing quality, the emphasis is on the evaluation of the common characteristics of the designs compared to each other rather than their differences and how much freedom the designer has in terms of developing the design is considered. As mentioned a lot in the market, in order to register a design, expressions like there should be “7 different features” or “50% different” are absolutely wrong.
It can obtain legal protection through a design registration that meets these requirements.
In the design protections carried out by KORDINAT, a design application and registration generally goes through the following stages;
- Preparation of Design File and Application Phase: A file prepared to protect a work subject to design is prepared according to the design provisions of industrial property law no. 6769 and in accordance with general international standards. Critical point in the design file is visual expression and design description. The visual expression can be a picture or drawing that best describes the design. The description is a section that describes the features of the design in sentences. The quality of visual expression and description, also determines the quality of design protection. Although the specification is a suggested point in the design application, the lack of description for some products can also be implemented as a strategy. Even in the Industrial Property Law No. 6769, the design description is not stipulated. Official application prepared by KORDINAT attorneys, and the legal protection is initiated after applying to Turkish Patent and Trademark Office.
- Official Office Content Review Phase: During the design registration application, after examination, if there is no deficiency in terms of compliance with formal conditions, the application is examined in terms of content within the framework of Article 64, paragraph 6 of the Industrial Property Law no. 6769. Accordingly, the official office rejects following design registration requests;
- Not suitable for design or product description,
- Contrary to public order or general morality,
- Made by real or legal persons not covered by Article 3,
ç) Inconvenient use of sovereignty signs covered by 6. Repeating of Article 2 of the Paris Convention and signs, badges, insignia, or naming which have become public in respect of religious, historical and cultural values and which are not authorized by the relevant authorities out of this scope but regarding public.
- One determined that it is not new.
Within the scope of paragraphs (b) and (ç) of the sixth paragraph, if the refusal decision is only for a part of the design, only the part related to that section is decided to partially refused. As a result of partial refusal, for the continuation of the registration, the remaining part must meet the protection requirements and retain the design identity.
The two most important elements in design is that the product or part of the design is new and distinctive in the world. Of course, this innovation should be understood as visual innovation, not technically or functionally.
- Registration to Design Registry and Publication Phase: The design registration applications that do not contain any formal deficiencies or that are completed within the deficiency period and that are suitable in terms of content is registered in the Design Register and published in the first Bulletin concerned. The applicants who are damaged by the decisions of the Institution can appeal within two months of the date of notification of the decision against the refusal or partial refusal decisions given in accordance with Article 64 of the Law (SMK 6769). It should be noted that this right of appeal is an issue concerning the applicants.
- Objection to Registration and Response to These Objections, if any: In order to create a competitive environment and develop the industry, new and distinctive designs must be protected by registration and designs that do not have this feature should not benefit from protection. Otherwise, it is certain that, based on a document whose injustice and invalidity is verifiable, severe aggrievements occur as a result of imposing sanctions against the people who make production in the same sector in the market. In order to prevent this aggrievement, the appeal mechanism should be commonly used. The designs that are decided to be registered are published and opened to objection for 3 months.
For design applicants, defense against objections is vitally important. Basically, design is made to be competitive in the sector and for more profit. To make these two situations permanent can be possible with design registration. At least design registration is a strong tool here. In order to prevent this power or right from being lost by an objection that has been registered, it is necessary to give a strong answer against design appeal and the appeal should be disenabled.
Unregistered Design Protection;
If it was presented publicly for the first time in Turkey, the unregistered designs are preserved for 3 years within the scope of 55. Article 4. Paragraph, 56. Article 4b Paragraph, 59. Article 4. Paragraph of Industrial Property Law No. 6769. The unregistered designs gives the right to prevent only the same or generally indistinguishable copy of the protected design from being copied to its owner. This application is more important especially for fast moving consumer goods and fashion industry.
For its customers to use their designs effectively in competition, KORDİNAT conducts design application, registration and management procedures with experienced attorneys in the industry. Effective management of design application is combined with a well-designed competitive strategy, there will be undoubtedly important advantages for companies.