Design protection application

General information

Design protection protects the appearance, which means the features perceptible to the eye, of an industrial product. These include, for example, the colour, the shape, the surface structure and the material. Both three-dimensional and two-dimensional objects can be protected as designs, such as clothing, toys, furniture, fabrics, logos or graphic symbols.

However, a design does not protect the idea or invention behind the product, the production process, etc. The function of an object is also not protected by the design. Components which are not visible when used as intended (e.g. spark plugs) can therefore not be protected as designs. There is no design protection for computer programs, but there is for website layouts, for example.

Enterprises affected

Natural and legal entities who wish to have the design of their creation protected against imitation by design protection are affected.

Requirements

The design must be new at the time of application

A design is not new if it was published before the filing date or the priority date. It is not only decisive whether the design was already accessible to the public somewhere in the world. The decisive factor is whether it could have been known in the normal course of business by professionals in the sector concerned operating in the European Economic Area (EEA).

If the design has been disclosed to third parties under express confidentiality, it does not detract from being new. If the creators or their legal successors have published the design themselves, it also does not detract from being new either if the publication took place within twelve months before the filing date or priority date (grace period). However, the grace period is not recognised in all states.

The design must have individuality

A design has individuality if the overall impression of the design differs sufficiently from the overall impression of other, older designs. The type of product in which the design is used or incorporated is taken into account as well as the respective industrial sector.

A design must not be contrary to morality

A design must not infringe older, existing designs. It should therefore be examined before filing a design application whether the design does not already exist. The shape of the design must not be exclusively determined by its technical function.

Deadlines

No deadlines are set. Creators should note that designs must be new at the time of application.

Competent authority

Austrian Patent Office (→ ÖPA)

Procedure

Designs cannot be protected across the board, but creators must indicate in the application for registration for which products pursuant to the Locarno Classification (→ ÖPA)^{German text} their design is to be used.

Application options

• Online application design (→ ÖPA)^{German text}(except secret application)
• Paper application: Drop off at the customer center of the Austrian Patent Office
• By mail
• Application by e-mail is not permitted

For application on paper, the form Design - Single Application - MU 1e^{German text} or the Design - Multiple Application - MU 1s^{German text} as well as the Supplementary Sheet^{German text} can be used. This makes it easier to meet the formal requirements.

Representation

If creators have their domicile or place of business in Austria, they may register their design without representation. If they want to be represented, they may choose any person of legal capacity. This person must submit a written power of attorney.

If the applicant is neither domiciled nor established in Austria, a professional party representative authorised to represent the applicant in Austria (patent attorney or law firm or notary's office) must represent the applicant.

If the applicant's domicile or place of business is in the EEA or Switzerland, it is sufficient to provide an Austrian power of attorney for service.

Single application

Creators may file only one design per single application and the illustrations may not reproduce different versions of an object. If several designs are to be filed in the same class, it is possible to file a multiple application for design.

Multiple application

Up to 50 designs can be grouped together in a multiple application for design. For example, applicants may file several variations of a design.

The prerequisite is that the designs fall into the same class of goods. The subclasses can be different. Filing a collective design is cheaper than filing each design individually.

Secret application for design

If creators are interested in keeping their design secret for as long as possible, there is the possibility of filing a secret application for design. The form Design - Single Application - MU 1e^{German text} or the form Design - Multiple Application - MU 1s^{German text} is used for a secret application for design. The option "secret application for design" [Geheimmusteranmeldung] must be ticked. The design illustrations, design specimens and the description shall be submitted in a sealed envelope. The envelope is opened by the Austrian Patent Office 18 months after the application (or after the priority of the design).

Publication and registration of the design can only take place after the envelope has been opened. In the case of the secret application for design there is therefore a delayed start of protection.

After the application - The design grant procedure

In the procedure it is first examined whether it is a design and whether formal defects exist. If the defects are improvable, a request is made to remedy the defects. If neither an illustration nor a design specimen is submitted with the application or if accessories partially obscure the subject-matter of the IP right, there is an irremediable deficiency. In this case, there is only the option of a new application.

In the application procedure, it is not examined whether the design is new, has individuality or whether earlier rights exist. It is also not examined whether the design is solely due to its technical function or whether the applicant is entitled to the design.

The legality test examines whether the design is contrary to public policy or morality.

The design registration shall take place on the 20th of each month. From this day on, the design protection exists. The registration shall be published in the Musteranzeiger, entered in the Register and a design certificate shall be issued to the applicant.

Required documents

Two copies of the application form must be attached:

• At least one design illustration (photo or drawing), exception: Secret application for design
  The features of a design which are visibly reproduced in the design application are relevant for protection. Design illustrations can be photos or drawings, in colour or black and white. Up to ten different illustrations can be handed over to illustrate the design. The design illustrations must not be larger than DIN A4 format and must be single-sided. The submission of technical drawings is not permitted. Colour photos and drawings in black and white may not be submitted at the same time. The illustrations should clearly show the design, if possible without any accessories. Accessories are everything that is not part of the actual subject-matter of the IP right, e.g. arrows and descriptive notes. This does not apply to presentation aids such as transparent decorative mannequins for garments.
• Possibly a design specimen
  But only if creators deem it necessary for the clear revelation of the design. A one-time storage fee of 80 euros is payable for the submission of a "three-dimensional design". The design specimen must not weigh more than 10 kg and must not be larger than 50 x 40 x 40 cm. If a design specimen is submitted, images of the specimen that clearly reproduce the design specimen must also be submitted for publication and registration.

When applying online, an image of the design must be uploaded (JPEG/JPEG, maximum 4000 x 4000 pixels).

Costs and fees

Costs for individual design application

• on paper: 87 euros
• online: 82 euros
• additionally per class: 15,50 euros

Costs for collective design application

• on paper: 147 euros
• online: 142 euros

Secret application for design: 50 percent surcharge

For the maintenance of a design (maximum 25 years), a renewal fee must be paid every five years, which amounts to 130 euros per design for individual designs and 88 euros per design for collective designs.

Further information

Design infringement

If the design is infringed, an action may be brought before the Commercial Court of Vienna for injunctive relief, removal, publication of a judgement, reasonable compensation, damages, surrender of profits, rendering of accounts and a claim for information about the origin and the distribution channel.

Design protection overseas

The Community design provides protection which is valid throughout the European Union (EU). A distinction must be made between the registered and the unregistered Community design. The office responsible for the application or registration.

International designs can be deposited with the World Intellectual Property Organization (WIPO) via the Hague Agreement. Austria is not a State Party to the Hague Model Convention. However, due to the link between the Community design protection system and the Hague Agreement, it is also possible for Austrian applicants to enter the Hague system via the EU basis and obtain protection in other contracting countries.

Further links

• Online application design (→ ÖPA)
• Patent and utility model sheets, brand and pattern register (→ ÖPA)^{German text}
• Fact sheets of the Austrian Patent Office (→ ÖPA)^{German text}
• Forms and fees (→ ÖPA)^{German text}
• European Union Intellectual Property Office (→ EUIPO)
• Hague system (→ WIPO)

Legal bases

• Musterschutzgesetz (MuSchG)
• sections 20, 21 of the Patentamtsgebührengesetz (PAG)

Link to form

• Design - Single Application - MU 1e^{German text}
• Design - Multiple Application - MU 1s^{German text}
• Supplementary Sheet^{German text}
• Online via "eFiling" (→ ÖPA)^{German text}

Means of redress or appeal

Registration does not guarantee that design protection is secured until the end of the term. If third parties can prove that the registration should not have taken place, they can apply for a nullification of the design. Appeals to the OLG Vienna and the supreme court of justice (OGH) against the decisions of the Austrian Patent Office are still possible.