Scope of protection
The holder of a Benelux design has the exclusive right to its use, i.e. he has the right to forbid third parties from using for commercial purposes (or to manufacture, sell, import, export, display or to hold for one of these uses) a product incorporating a design which is similar or identical to his own. It is a “right to forbid.”
A design right also allows its holder to forbid or cancel a later request for an identical design by a third party.
The design holder’s exclusive right is not absolute. In certain cases, the holder must tolerate certain uses of the design by third parties, without advance authorisation.
The main limits to design rights are that the holder may not oppose private and non-commercial uses, experimental uses and illustrative or educational uses of the design.
Transfer or licensing
The design may be transferred (for example, sold) by its holder to a third party which becomes the new holder. In Belgium, inter vivo transfers must occur in writing. For the transfer to be enforceable against third parties, an extract of the transfer act must be registered with the Benelux Office for Intellectual Property (OBPI).
The design may also be licensed. Licensing is like leasing a design. It must not necessarily be in writing, but must also be registered in order to be enforceable against third parties.
Design right holders have different ways to defend themselves against counterfeiting of their designs.