Intellectual property is a broad category that includes many different objects of legal protection. Some of these objects are more popular and are reflected in the legislation of most countries. However, there are also those that are characteristic only of some legal systems. Among such objects is an unregistered industrial design, which, for example, is reflected in the legislation of the European Union. 

Article 1 of the Paris Convention classifies industrial designs as objects of industrial property, which implies the application of the principle of national legal protection to them. 

Industrial designs are also mentioned in Article 2(7) of the Berne Convention: “The legislation of the countries of the Union may determine the extent to which their laws shall be applied to works of applied art and industrial designs and models, as well as the conditions for the protection of such works, designs and models. In respect of works protected in the country of origin solely as designs and models, only the special protection granted in that country to designs and models may be claimed in other countries of the Union; however, if no such special protection is granted in that country, these works shall be protected as artistic works.” 

Depending on the legislation of a particular country, a product design may be protected by copyright, patent law or in the mode sui generis. 

For example, in the European Union, industrial designs are protected precisely as objects of a “special kind”, the provisions of which are reflected in a special regulation – in this case, Council Regulation (EC) No. 6/2002 of 12 December 2001 on Community Designs. Article 3 of the regulation defines an industrial design as “the appearance of the whole or part of a product resulting from the features of the product, in particular the lines, contours, colours, shape, texture and/or materials of the product itself and/or its decoration.” 

The said regulation introduces two forms of protection of industrial designs: 

1. Registered, for which protection is obtained by following the relevant procedure with the registering authority; 

2. Unregistered, an industrial design whose protection arises as a result of its proper publication. 

In both cases, legal protection for industrial designs will be granted if the industrial design meets the criteria of novelty and individual character (originality). At the same time, the moment of emergence of legal protection for unregistered and registered industrial designs differs. 

Article 11 of the regulation establishes that an unregistered industrial design receives legal protection from the moment of publication of the industrial design in the territory of the European Union, including if it was published; exhibited at an exhibition; used in commercial activities; or disclosed in another way that allows specialists in a certain field to become familiar with the industrial design in the course of business activities. The term of protection of an unregistered industrial design in the European Union is three years from the date of its publication. 

However, an industrial design cannot be considered as made public if information about it was disclosed to a third party in accordance with express or implied conditions of confidentiality. 

At the same time, the date of origin of legal protection of a registered industrial design, according to Article 12 of the regulation, is the date of filing an application with the registration authority, and the term of legal protection itself can reach 25 years from the date of filing the application. 

In addition to the moment of origin of legal protection and its term, an important difference between registered and unregistered industrial designs is the set of powers of the right holder, which he acquires in connection with the receipt of legal protection by the industrial design as an unregistered or registered design. 

Thus, in accordance with Article 19 of the regulation, the owner of a registered industrial design has the right to use the registered design (including by manufacturing, offering for sale, importing, exporting products in which the industrial design is embodied), and also to prevent the use of his industrial design by third parties. 

Meanwhile, the right of the copyright holder with respect to an unregistered industrial design is limited to its ability to protect its intellectual property from intentional copying. At the same time, an independently developed creative product by a third party will not be considered copying if it can be reasonably assumed that the third party was not familiar with the published industrial design. 

With regard to disputes on infringement of rights in an unregistered industrial design, it should be noted that, in accordance with Article 95(2) of the regulation, if the right holder provides evidence of proper disclosure of the industrial design in accordance with Article 11 of the regulation, as well as an indication of how the originality of the industrial design is manifested, it will be presumed that the industrial design is valid (presumption of validity). 

In Karen Millen Fashions Ltd v. Dunnes Stores, the court confirmed that it is sufficient for the right holder to indicate specific elements of the product’s appearance that, in his opinion, give the design an original character. At the same time, the right holder does not have to prove that the industrial design meets the criterion of originality, since this would contradict, among other things, the presumption established by Article 95 (2) of the regulation regarding unregistered industrial designs. 

Meanwhile, it should be noted that there is a certain connection between unregistered and registered industrial designs.  

Thus, an unregistered industrial design may represent a kind of “demo version” of a registered design. This means that the author or other owner of an unregistered industrial design may “test” the product in which the industrial design is embodied to determine its demand on the market, and then decide on the need to register it with the department. The regulations provide for a grace period of 12 months from the moment of disclosure of information about the industrial design, during which an application for registration of the industrial design may be filed. 

The diversity of forms of legal protection of industrial designs is also due to the fact that some industries, such as the fashion industry, require a faster, unburdened by formal procedures, legal protection of design. This is primarily due to the fact that in certain areas, design solutions quickly lose their relevance due to frequent changes in trends and the need to constantly update the appearance of their products. In this case, the ability to protect a design from copying immediately after its publication is more valuable than obtaining a wide range of powers provided as a result of registering an industrial design. 

To summarize the above, it can be noted that the existing order of protection of industrial designs in the European Union implies the possibility of choosing the protection of the design as an unregistered or registered industrial design. At the same time, it must be recognized that the narrower scope of legal protection of an unregistered industrial design compared to registered ones is compensated by the absence of the need to register them to obtain legal protection, which is more attractive for some industries. The envisaged variability of forms of protection of industrial designs allows everyone to choose the appropriate method of protecting the appearance of products that will meet the needs of a specific participant in economic turnover.