When a design is copied by a competitor: what it costs to be wrong
When a competitor copies a product's appearance, the cost of guessing wrong is measured in time, not money. Acting without dated evidence, without checking whether the shape is already registered, and without choosing the right channel turns a strong position into a weak one within weeks. The first steps decide whether the file is provable.
The basis
Design protection in the EU runs on two separate tracks. One is a design right, registered or unregistered, protecting the shape as such. The other is trade mark protection, available where the same shape, position or pattern also signals commercial origin. Where the copied feature is protected as an EU trade mark, the applicable instrument is Regulation (EU) 2017/1001 (EUTMR). Where the client wants to stop copied goods before they cross the EU external border, the applicable instrument is Regulation (EU) No 608/2013.
What changes in risk and timing
Every day of inaction has a cost that is procedural, not financial. Evidence of first use and evidence of copying both degrade: witnesses forget dates, online listings change, and stock is replaced. If the product is sold through a single online storefront, the question of where the servers sit also matters — see When a hosting provider changes region: what it costs — because it can shift which court has jurisdiction. The priority window tied to the design's own filing runs regardless of what the competitor does next.
What to do
- Instruct the internal team to preserve dated evidence: photographs, invoices, packaging, and the exact date the product first appeared on the market.
- Ask counsel to compare the two designs feature by feature, not silhouette by silhouette.
- If the shape is also registered as an EU trade mark, instruct counsel to check the grounds for opposition or invalidity under Regulation (EU) 2017/1001 (EUTMR) before sending any letter.
- If goods are physically imported, file a border application with the national customs authority under Regulation (EU) No 608/2013.
- Decide, with counsel, whether interim relief is requested before or after a cease-and-desist letter; sequencing changes the evidentiary record.
Who decides
Three different bodies can be involved, and they answer different questions.
| Channel | Who decides | What it stops |
|---|---|---|
| National court design or copyright action | The competent national court | Manufacturing, selling or importing the copied product within that jurisdiction |
| EU trade mark opposition or invalidity, where the shape is also a trade mark | EUIPO, applying Regulation (EU) 2017/1001 (EUTMR) | Registration of a conflicting EU trade mark |
| Customs enforcement | National customs authority, acting on the rights holder's application under Regulation (EU) No 608/2013 | Physical shipments of copied goods crossing the EU external border |
Three forks
If the copied element is the shape and that shape is also registered as an EU trade mark, the EUIPO route runs in parallel with any national design claim, and the two should be filed together, not in sequence.
If the copied element is not the shape but the underlying technical solution, the question is no longer about appearance — see When the same invention is granted to someone else.
If the competitor's ownership sits behind a tokenised structure, tracing who actually controls the infringing entity raises a separate governance question — see When a token gives voting rights: what it costs.
What this page does not solve — sources and limit
This page does not set a price, does not replace a side-by-side comparison opinion, and does not cover copyright in the design where copyright, not design or trade mark law, is the stronger claim. It does not map which registers hold the client's existing rights across several jurisdictions at once; that mapping sits in the product layer — see Asset in Romania and the deadline.
Related situations
A copied design and a colliding rebrand raise the same procedural question in reverse — see When a rebrand collides with an earlier right step.
The first reply from a partner arrives within minutes during business hours. A fee estimate, once the facts and jurisdictions are known, follows within one business day.
Verified
Verified: 4 March 2025. Primary sources: Regulation (EU) 2017/1001 (EUTMR); Regulation (EU) No 608/2013.
FAQ
What is the first step when a design is copied by a competitor?
Secure dated evidence of both the original design and the copy before contacting the competitor. Evidence gathered after a cease-and-desist letter is sent is weaker than evidence gathered before.
Which deadline is already running?
The clock tied to the design's own filing or first disclosure runs regardless of the competitor's conduct. It does not pause while the client weighs options.
Who decides, and on what evidence?
A national court decides infringement and remedies for the copied design. EUIPO decides trade mark conflicts where the shape is also registered as an EU trade mark under Regulation (EU) 2017/1001 (EUTMR). Customs authorities decide border seizure requests under Regulation (EU) No 608/2013, based on the rights holder's application and supporting evidence.