Our world is changing, and this has an inevitable impact on the way designs are created. Camille Champion, specialized in prior art searches on designs, will share her experience on the way designs have evolved in recent decades, and explain the incidence it has on the way to search and analyze information.

15 years ago, the frontier between “designers” and “followers” was well defined: on one end you had the creative firms which developed innovative designs through the shapes, details, materials, colors and patterns of their products. Their business model was based on the designing of their products, and they invested in the protection of their intellectual property rights. On the other end, you had the “followers”, who followed the trend and inspired themselves, bought products from Asian suppliers, giving people the possibility to buy furniture or tableware at more accessible prices.

(HKTDC Tableware magazine presenting supplier’s products from Kong Kong trade fairs)

These last few years, the dynamic has clearly evolved. As the “followers” tried to find ways to differentiate themselves from the growing number of direct competitors, and secure their long-term growth, they integrated design departments, also and maybe because they understood that “inspiring” themselves was not a long-term solution, since they were regularly sued by other firms for counterfeiting.

Today, many designs which are branded by – what used to be – the “followers” are as attractive as – what used to be – the “designers”. The product is well finished, the packaging and the communication are neat, and their marketing efforts have led to an increase of the prices. They patent their designs, in fact we notice that Chinese firms patent more and more designs in Europe, which was not the case a few years ago, since they had only a role of manufacturer.

(Example of designs registered by Chinese firm in the European design patent database)

As this frontier is melting away, clearance searches are more difficult to conduct when it comes to finding the real designer, and potential claimer, of a design in order to avoid litigation. Before, you could simply conduct a current market situation to understand who designed the product, as the brand itself, or the marketing of the product (packaging, price, website…), were sufficient to understand who could claim IP rights on a design. Nowadays, conducting a clearance search requires more efforts, as the indicators are not as reliable as before; in some cases, it is advised to launch a deeper and broader search in order to determine who was the first one to distribute the product.

In our world of ultra-consumerism, designers have to imagine and design always more products. The pressure they are undergoing, combined with easier access to designs of other brands through social media such as Pinterest and Instagram, as well as to vintage designs through second-hand platforms such as Vinted, makes inspiration easier, whether you want it or not.

Some clients, as well as the management, have also access to the information and know exactly which products are successful, they might be tempted to ask designers to inspire themselves, leaving even less place for creativity.

Add to this the fact that so many products have already been designed, differentiation is nowadays very difficult. Before, with less products on the market than today, it was easier for a design to differentiate itself from the others: one original element could make the difference. For instance, a handbag had a specific and original shape, which made it unique. Today, since it seems like everything has already been done, a new design will be based most of the time on a combination of characteristics: the shape of the bag, associated with the shape of the flap, the closure system, the length and style of the strap, the patterns and other specific details such as the presence of pockets.

(Extract of an old Fall/Winter 1951 sales catalog)

When it comes to doing clearance searches, and when IP counsels need to measure the risk of conflict between a firm and its competitors before launching a design, the comparison of the products is a more complex exercise and it is more time-consuming.

When artificial intelligence could have been of great help 20 years ago for prior art searches, because it could have helped us identify an overall shape, the combination of characteristics is today generally too complex to be managed by AI only.

While the paternity of the designs has evolved, the designing processes have also undergone a transformation.

Today a larger number of firms of different backgrounds have invested in the designing process, and are susceptible to claim paternity of a design. Thanks to the Internet, inspiration is easier, and given the large number of new products launched each year, designs need to combine several characteristics to differentiate themselves from the others. All these facts make it nowadays more difficult for IP professionals, whether IP service providers, lawyers, attorneys or in-house counsels, to select and analyze data on a design.

Camille Champion is the founder of Paperz IP specializing in documentary searches on designs and trademarks for intellectual property professionals. She started this activity more than 10 years ago. Paperz IP helps companies, in a preventive framework, to avoid lawsuits for counterfeiting or unfair competition, or to defend themselves in the event of litigation. Its team of archivists searches information in its documentary collection, in museums, on the Internet, and in industrial property databases.

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