Image for illustrative purposes only

Birkenstock’s sandals have been around for decades and undergone something of a renaissance in recent years, featuring on catwalks and the Barbie movie.  Founded in Germany in the 18th century, the company saw a surge in popularity in the 1970’s following their introduction into the USA.

The Birkenstock name and logos, like most established footwear brands, are protected by numerous trade mark registrations throughout the world.  Trade mark registrations are powerful intellectual property rights as, if they remain in use and are continuously renewed, the rights can remain in force indefinitely.

Protecting Footwear Designs 

The footwear itself can be protected by registered designs, another form of intellectual property.  Registered designs are a useful form of protection for the appearance of products that are novel and have individual character. Registered designs protect against unauthorised selling of products with the same appearance or give the same overall impression as the protected design, and last up to 25 years from registration in Europe and the UK. 

Owing to the company’s recent success, Birkenstock have suffered from copycat versions of their sandals being sold, particularly through online marketplaces.  As the copiers are careful not to use the Birkenstock brand or anything similar to their registered trade marks, Birkenstock have had difficulty stopping copies of their older designs, as the relevant design rights have expired.

Birkenstock’s Legal Challenge and the Role of Copyright

Recently, Birkenstock failed in their attempt in the German courts to prevent several manufacturers from copying their iconic design by claiming that copyright in their sandal design was being infringed.  Copyright is an automatic right which subsists in an original artistic, dramatic or musical work.  Birkenstock’s claim therefore relied on being able to convince the German court that their sandals were artistic works and were eligible for copyright protection.  

Ultimately, Birkenstock were unsuccessful, with the German court ruling that “pure craftsmanship using formal design elements” was not enough to qualify the design as an artistic work. 

While the ruling prevented Birkenstock from relying on copyright to protect their designs, other forms of protection may still be available. For example, one further form of protection available to Birkenstock may be the registration of some of their recognisable designs as three-dimensional trade marks.

This case shows that companies and individuals may rely on a variety of intellectual property rights to protect their designs, and that designers should consider the whole range of protection available to them. If you would like cost effective and pragmatic advice on how to protect your designs, products, and ideas, please contact one of our attorneys.

After years of discussion and delays, the EU Council has approved a reform package to EU design law, with the practical aspects becoming effective as of the 1st May 2025.  This reform package introduces several significant updates that affect the scope of design protection, registration processes, and the overall functioning of the EU design system. In this article, we’ll provide an overview of the main changes.

New terminology, definitions and registration symbol

As part of the reform, the design rights are renamed to include a clearer focus on the nature of the protection granted. The traditional terms “Registered Community Design” (RCD) and “Unregistered Community Design” (UCD) have been replaced with “Registered European Union Design” (REUD) and “Unregistered European Union Design” (UEUD), reflecting the broader and more unified application across all EU member states.

To make it easier for the public to identify registered designs, a new registration symbol will be introduced.  This symbol will be displayed alongside the registered design to indicate its protected status and is in the form of a capital letter D enclosed within a circle: Ⓓ.

The definition of a “design” has been expanded significantly. It now explicitly includes designs that involve movement, transition, or any form of animation. This is a crucial update to recognize that the dynamic nature of certain designs (e.g., animated graphics, moving elements in a product) contributes to their aesthetic appearance.  This change is particularly relevant for industries involving digital products or user interface (UI) designs, where movement and transitions are a key part of the overall design, but not previously covered under traditional design protection.

These additions mean that designs which are not embodied in a physical object but rather are virtual or dynamic in nature (e.g., animations, UI/UX features) can now be protected as designs in the EU.

The reform also introduces a much broader definition of “product”. While the term traditionally referred to physical objects, the new definition will explicitly encompass both physical products and digital products (such as software, virtual goods, digital representations, etc.).  This allows designs related to digital content, including apps, websites, virtual reality environments, and other non-physical products, to be protected under EU design law. The expansion reflects the growing importance of digital designs in modern product development and consumer experience.

Possible Broader Protection for Features Not Visible in Normal Use

There is an indication that features not visible in normal use could be granted broader protection. Under the previous regulation, designs that were not visible during normal use (e.g., hidden components or internal features) were often excluded from design protection.

The reform clarifies that designs which include features that are not visible in normal use can still be registered and protected. This change is particularly important for industries like automotive, consumer electronics, and packaging, where internal or hidden features can have significant aesthetic value.  However, it is important to note that this protection does not extend to component parts of complex products, which must remain visible in normal use in order to be protected.

Changes to the “Repair Clause”

The “repair clause” in the new regulation has been strengthened, meaning that design protection will not apply to component parts whose appearance is dependent on the appearance of the complex product concerned (“must-match” spare parts).  With fewer design rights in this particular area, it is now thought that this could increase competition in the spare parts market, potentially leading to lower prices and greater availability of aftermarket parts, for example, in the automotive industry.

Summary

The EU Design Reform Package represents a comprehensive update that aligns EU design law with modern technological, digital, and economic realities.  The key changes focus on expanding the definition of “design” and “product” to cover digital, dynamic, and non-physical designs, and enhancing the protection for designs with non-visible features, while seemingly increasing competition in the spare parts market. These updates will likely make it easier and more attractive for a broader range of creators, including those in digital and high-tech industries, to secure and enforce design rights in the EU. If you have any questions or would like further information regarding any of the above, or would like to understand how we could help you enforce your design rights in the UK, EU, or beyond, please do not hesitate to contact us, either by email at mail@bailey-walsh.com or by telephone on +44 (0)113 243 3824.

In an over-saturated market, you’ll need a stellar design to ensure you catch your customer’s eye. Aside from making a great first impression, designs can evoke emotional responses, improve business memorability, and create meaningful experiences. 

However, innovative and striking designs can also inspire a wave of copycats eager to replicate your success. That’s why many entrepreneurs choose to protect their intellectual property and register their designs. 

In this article, we’ll cover the differences between unregistered vs registered design rights in the UK and how these may affect your protection. 

What are design rights? 

Before we delve into the difference between design rights, let’s explore the concept. Design rights, registered or unregistered, are an integral part of intellectual property law that provide designers or their employers with protection against the use of their design by an unauthorised third party. The protection offered varies whether a design is registered or unregistered, but generally speaking the appearance of an article may be protected. The function of these articles is usually excluded because this aspect is protected by patents.  

Designs can be protected across a number of novel features of appearance, including physical shape and configuration.  Surface decoration however can only be protected in the UK by registered designs. Some examples of protectable designs include computer icons, video game characters, digital media products, and three-dimensional or two-dimensional shapes. 

Why do people protect their designs? 

Individuals choose to protect their designs to avoid others copying their intellectual property. For a limited period of time, design registration prohibits others from making, offering, importing, exporting, using, or selling a product with the same design. 

By safeguarding the creativity of their design, entrepreneurs can monetise their innovations and build a strong brand identity. Plus, if another company chooses to replicate their unique design, owners can pursue legal action. 

The difference between unregistered vs registered designs 

In the UK, new designs may be protected by registered design rights and/or unregistered design rights. Both can provide protection against copying; however registered designs provide protection against a third party using a similar design, whether or not the third part design was copied or the similarities are coincidental.  The scope of protection and the process and eligibility for acquiring these rights vary, so being aware of the difference between design rights is crucial. 

Here’s how registered vs unregistered design rights differ: 

Protection process 

UK unregistered design protection occurs automatically once the design is first recorded or disclosed to the public anywhere in the world, provided the employer, designer or first marketer is a qualifying person, – there is no need for an application or registration process. We recommend maintaining a record of when design drawings are made, as well as evidence of when the design is first made commercially available. 

Registered designs require a formal application to the UK Intellectual Property Office (UKIPO) with a description and representation of the design. 

Scope of protection 

UK registered designs receive a broader scope of protection. Protection covers the whole or partial design of a product, including features like lines, contours, colours, shapes, materials, ornamentation, and even textures. The scope of protection can include packaging, get-up, graphic symbols, typographic typeface, and component parts of complex products. Registered design rights are a monopoly right. 

UK unregistered designs generally protect the shape or configuration of whole or part of an article, and only protect against copying.  Designs that are genuinely independently created (not copied) and just happen to look the same as earlier designs fall outside the scope of design protection. 

Length of protection 

UK unregistered designs are only protected for a maximum of 15 years from the end of the year when the design was first recorded or an article was made to the design or, if shorter, 10 years from the end of the year when the article was first publicly disclosed. Registered designs benefit from a longer period of protection of up to 25 years from the registration date, subject to renewal fees every 5 years. Registered designs also benefit from a 12 month grace period in which applications for registration can be validly filed after public disclosure.

Renewal process 

UK registered designs must be renewed every 5 years and maintenance fees must be submitted to the IPO for a maximum term of 25 years from the registration date. Unregistered designs are non-renewable. 

Protection rights 

Registered design rights are monopoly rights that provide owners with the exclusive rights to use, sell, and licence their designs. They can also prevent others from making use of their designs which give the same overall impression as a registration by pursuing legal action. Unregistered design owners can only prevent direct copies of their designs; however, legal enforcement of these rights is more challenging as it must be proven there has been copying by an alleged infringer. 

How to register a design right in the UK 

To register a design right in the UK, entrepreneurs must ensure the design is new and has individual character. Moreover, designs cannot be solely dictated by the product’s technical function. Any disclosure of the design prior to the registration must not be prejudicial or must have been made in a 12-month grace period before the registration. 

Applicants must submit the relevant paperwork to the IPO alongside a  filing fee. For a single application, the fee is £50 however this increases for multiple applications. In the UK, registered design applications are not subject to a prior art search and there is assumed novelty. However, prior art searches may become necessary in later validity proceedings.  

How long is your registered design protected for? 

Once a design is registered, the owner must submit a renewal form alongside a £70 payment on the fifth anniversary of the design registration. From there, they can renew their design every five years, for a maximum of 25 years. Design renewal fees increase every five years and late submissions are penalised at an additional £24 per month.