It would not be too far from the truth to say that most of us associate the term "design" with objects such as cars, bicycles, home accessories, or various devices. Yes, this is a traditional understanding of design, even in intellectual property law, which has its basis in historical roots back to the time of the adoption of the Paris Convention in 1883, which subsequently reflected the technological reality of the whole 20th century.

When information technologies came forward at the end of the 20th century, their impact on intellectual property law was significant in Europe, particularly in the area of copyright as well as in patent law. However, design law has not been similarly affected. There is not much point in looking for the reasons for this legislative development, but it is interesting to see that in the case of design law, legislators (not only in Europe) and academics, has overtaken the practice of registration offices driven by clear business demand of increasing number of entrepreneurs requesting design protection for digital assets like graphical user interface (GUI), icons, displays of various devices (PCs, laptops, smartphones, tablets, industrial devices).

The year 2004 can be considered as a breakthrough year when the Office for Harmonisation in the Internal Market (OHIM), the current European Union Intellectual Property Office (EUIPO), introduced in it design classification, which largely corresponds to the international classification of designs, the special subclass 14.04 entitled "Screen displays (graphical interfaces for displays (cards), computer icons)". Since then to March 2022, more than 42,744 digital designs valid throughout the European Union were registered in the new subclass, representing on average almost 2,000 digital designs per year. It is worth mentioning that the most common are applicants (companies) from the USA (33%), Germany (15%), Great Britain (approx. 5%), South Korea (approx. 5%), China, Japan, Italy, Switzerland, Sweden, and Malta (approx. 2%). Malta leads this ranking per capita, which is related to the developed online gaming industry, which accounts for approx. 12% of Malta´s GDP.

When we take a closer look at the reasons why digital designs are registered, we might think that the main purpose is mainly to gain competitive advantage and to avoid and prevent conflicts based on unfair competition or copyright law, that are not harmonised (sufficiently) in the European Union. Trademarks have completely different purpose, as well as a limited scope of protection. Unregistered designs are protected in the European Union only against direct copying and for 3 years only.

On the other hand, registered designs do not constitute an absolute comprehensive protection. And no other IP does! It is undermined by a possibility for third parties (namely competitors concerned) to invalidate any of registered designs since novelty and individual character examination is carried out only within invalidity proceedings (post registration). Each owner should consider well how "strong" the specific registered design is and whether it had not feet of clay. Certain limitation, rather of a technical nature, is a number of images (max 7) in the case of motion digital design when registering with the EUIPO. And if we move to IPR enforceability area, we will encounter a practical impossibility of initiating and implementing customs measures, since respective products (HW) in which digital designs are part of SW equipment, are always switched off during transport. Yes, it´s so prosaic.

Nevertheless, benefits from registering your digital designs prevail. We won several IP litigations cases for our client who had decided to register their crucial digital designs. And if you consider also 75% registration fee discount in 2022 (reimbursed from the SME Fund), you should not hesitate and do register your digital designs now.