MARQUES Chair Claudia Pappas of Thyssenkrupp (right) welcomed more than 120 people to the first MARQUES Design Symposium today. The event, taking place in Frankfurt, focuses on protecting product design – from cradle to eternity.

Claudia described designs as “close to my heart” and “under-rated”. She said that “now is the perfect time” for a conference on design protection, following the recent EU reforms and the CJEU judgment in Mio/Konektra, and that Frankfurt is “the perfect place” as it is World Design Capital 2026.

Claudia added that product design is particularly interesting “from both the legal point of view and the brand owner perspective”. It involves a mix of design, trade mark, copyright and unfair competition law, and lots of strategic and jurisdictional questions.

Designs and designers

Moïra Truijens, of Klos CS, The Netherlands and Secretary of the MARQUES Designs Team introduced and moderated Session 1: The Design and Its Designer (right).

Sven Klos of Klos CS said this area of the law is “riddled with prejudice”. Discussing the Mio case, he observed that some works are “more equal than others” when it comes to copyright protection. “When it’s something you can see and use, all of a sudden we run into problems – but not always.” Some functional works, including furniture, buildings and tools, are protected by copyright, but other are not. He gave various examples of copyright-protected products in the Netherlands and said it is also the only country to provide copyright protection for the Rubik’s Cube.

“We know what it is to be lost in the jungle of words,” said Sven. He distinguished between the objective approach – which he described as “skeleton and flesh” – and the non-objective approach, which requires the application of a qualitative test.

Sven said the Advocate General’s opinion in Mio/Konektra did not provide predictability and did not define “free and creative choices”. The Court’s judgment emphasised the “unique appearance” of the product, inviting the questions: what is unique? What are aesthetic considerations? It is hard to prove that a design choice was not random: this requires a variety of evidence including the designer’s own intention. “I hate prejudice; I love the rule of law,” said Sven.

Monica Leenders, Philips, The Netherlands provided an in-house perspective. Philips has over 100 years of design and today design is integrated into each business. In 2024, the Philips brand obtained 137 design awards. Using the Avent bottle warmer as an example, she said there were many different ways to design products: the Avent bottle has a lot of design features that are not dictated by its function and it was essential to emphasise these in enforcement actions. It had also won several design awards. The company has been successful in a design infringement action over the Avent bottle.

Questions in this session covered the design process, the role of prior art, the divergence between Europe and the US, the degree of originality required after Mio, the role of trade dress in the US and how to prove copyright infringement.

Proving creation and ownership

Session 2: Proof of Creation and Ownership was moderated Simon Casinader, K&L Gates, UK who is a member of the MARQUES Copyright Team. He emphasised the role of IP practitioners in helping to capture the growing value in intangible assets.

Speakers Olivia Dhordain, Outboxing IP, Switzerland (and former in-house counsel at Richemont) and Sam Breeze, K&L Gates, USA discussed the role of in-house and external counsel in the design creation and development process. “There’s a lot of unknowns in the US as far as what design patents can do,” said Sam.

Olivia said that designers often ask her what is important to date during their work and her response is: “Only you can know.” She described how IP counsel can empower the design team in documenting creation, and how a Blockchain-based tool helped with that. Adopting that tool not only simplified the document process, but also led to further discussions about design protection and strategy. “As an IP lawyer, you have to be innovative yourself and prepared to take risks,” she said.

The panel discussed best practices for documenting design processes, including who is involved, timing, which tools are used and how things are recorded and communicated. They also addressed the use of AI in the design process and the consequences of this for IP protection. Sam described how designers use AI for storyboard creation while Olivia emphasised transparency when using agencies. “It’s about risk management, talking and educating,” she said.

Olivia added that AI has potential help designers make use of their archive of creative works and can help in designing around existing works. Sam stressed the need to train designers, including on the datasets they are using. The panel agreed that IP practitioners have an important role to play in making sure designs are legally robust and valuable. “IP is about making sure there is a better product at the end,” said Simon.

Workshops

There were three interactive workshops in the afternoon, covering: strategic use of the different types of protection; multi-national design registrations (pictured above); and online enforcement. In the evening, there is a reception, dinner and talk.

The Design Symposium concludes tomorrow. Look out for a further post on the Class 99 blog for details of tomorrow’s sessions.