Scope of protection
The holder of a Benelux design has the exclusive right to use it, i.e. he has the right to prevent third parties from using a product that incorporates a design that is identical or similar to his for commercial purposes (in other words manufacturing, selling, importing, exporting, exhibiting or possessing for one of these purposes). It is in essence a right to prohibit.
The right to a design also allows its holder to prevent or cancel the subsequent filing of an identical design by a third party.
The exclusive right of the design holder is not absolute. In certain cases, he will have to accept third parties making some use of the design, without prior authorisation.
The main limits to design rights concern the fact that it is impossible for the rightholder to oppose acts carried out on a private basis and for non-commercial purposes and acts carried out for experimental purposes and acts carried out for the purpose of making citations or of teaching.
Transfer or licence
The design may be transferred (for example, sold) by its holder to a third party, who will become the new holder. Inter vivos transfers must take place in writing, and must apply throughout the territory of the Benelux. In order for the transfer to be enforceable against third parties, an extract from the deed recording it must be registered with the Benelux Office for Intellectual Property (BOIP).
The design may also be licenced. The licence is, in a way, the lease of the design. It does not necessarily have to take place in writing, but must also be registered, if it is to be enforceable against third parties.
The holder of the design right has several actions at his disposal to defend himself against the counterfeiting of his design.