A design qualifies for registration if:
It is new. A design must be ‘new’ at the time of filing. Subsequently, if the design has been disclosed or made public (other than by the designer, see below exception) prior to filing or if the design is not materially different to another design that has already been made public then the validity of the Registered Design can be attacked which, if successful, would result in the cancellation of the Registered Design.
One important exception to the above is that if the prior disclosures of a design is made by its designer, or in consequence of a disclosure made by the designer, within 12 months before the filing date (or priority date, if applicable) of the application then this cannot render the Registered Design invalid by a third party. If the designer made the design public more than 12 months after the filing of the application then the Registered Design can be declared invalid.
However, such disclosures may prevent registering the design in foreign countries, especially outside the European Union, as many countries in the world do not allow such a grace period, or allow a shorter period.
The above provisions do not exclude disclosures made independently of the designer during this period, and therefore applications should be filed before the design is disclosed if possible.
However, even a design that meets the above criteria can be refused registration for the following reasons:
• It is offensive (for example feature graphic images or words)
• It is not your own intellectual property
• It makes use of protected emblems or flags (for example the Olympic rings or the Royal Crown)
• A design registration cannot protect features of a design which are solely dictated by the product’s technical function