Design Law Treaty – Centre on Knowledge Governance

Should WIPO Harmonize Design Protection for Graphical User Interfaces?

Sean Flynn / 26 March, 2026

The United States and others have proposed that the World Intellectual Property Organization’s Standing Committee on the Law of Trademarks adopt a Joint Recommendation on Industrial Design Protection for Designs for Graphical User Interfaces. The core of the instrument would recommend “that Member States provide industrial design protection in relation to new or original designs for a graphical user interface (GUI),” and “that the acts considered by a Member State to infringe industrial design rights for a design for a GUI are the same as those considered to infringe industrial design rights for other products.” In considering this proposal, it is important for countries to consider the criticisms of using design law to protect GUIs. The core criticisms of using design law to project GUIs include that GUIs are functional, not merely aesthetic; that using design protection rather than copyright evades the limitations of copyright law that favors competition; that design protection favors larger companies and could reduce innovation by raising barriers to entry. As the proposal notes, GUIs, such as the icon designs on screens of various kinds, are increasingly ubiquitous in many mobile technologies from smartphones to the navigation screens in cars. Where GUIs contain sufficient originality, they may be subject to copyright protection. But some countries, including the US, also make GUIs eligible for design protection, with important ramifications. Flexibility in the RDLT The recently adopted Riyadh Design Law Treaty permits, but does not require, countries to extend design law protection to graphical user interfaces. Article 2(1) of the DLT establishes that “[n]othing in this Treaty or the Regulations is intended to be construed as prescribing anything that would limit the freedom of a Contracting Party to prescribe such requirements of the applicable substantive law relating to industrial designs as it desires”. It does not define what constitutes an “industrial design,” nor does it limit the categories of designs that a Contracting Party may choose to protect. Consequently, a national decision to extend protection to virtual, animated, or non-physically embodied designs falls within the substantive autonomy expressly preserved by Article 2(1). Functional Designs? There is a threshold conceptual problem with applying design law to GUIs. Design law is intended to protect ornamental or aesthetic features, not functionality. Critics point out that in GUI design, aesthetics and function are often inseparable. If a layout is the most efficient way to achieve a task, granting protection could stifle innovation by preventing others from using effective user experience patterns. While design patents are intended to protect only “ornamental” (non-functional) appearances, user interfaces inherently incorporate significant functional elements, leading to a system where designers may gain a “functional equivalent” of a utility patent through the design patent system. Evading Copyright Limitations Expanding design protection to GUIs may allow applicants to evade the inherent limits of copyright law. These include the requirement for originality (not mere functionality) in the expression to gain protection, the requirement to prove copying to establish infringement, and the ability of an accused infringer to assert limitations and exceptions as a defense. In the US, scholars have criticized the granting of design patents that fail to meet the minimal originality required for copyright. Competitive Effects Applying design law to GUIs may dampen competition in technology markets. Shared conventions – like using similar icons for similar functions — increase interoperability and the ability to compete. Creators of competing products using GUIs often need to use similar icons to ensure usability for consumers. Examples include the gear symbol for settings, or the trash can icon for deletion. Some GUI designs are so constrained by usability, convention, technical architecture, and user expectations that they leave competitors with no meaningful alternative designs that are equally usable. Granting design protection for such elements — requiring their licensing by potential competitors — can lead to a reduced ability to create competing products in local markets. Distributional Effects The distributional effects of GUI design protection are highly asymmetric: under current systems, design rights are used predominantly by large corporations from industrialized economies rather than by local designers in most countries. Leading filers such as Samsung Electronics, Philips, and LG Corporation illustrate how firms with substantial internal legal capacity and global market strategies are best positioned to deploy GUI design protection aggressively, reinforcing existing technological and economic concentration rather than fostering local innovation.

Design Law Treaty, India, Technical Assistance

Comments on Proposed Amendments to India’s Designs Act, 2000

Andres Izquierdo and Sean Flynn / 17 March, 2026

This document prepared by the Centre on Knowledge Governance provides comments on the Concept Note published by the government of India proposing a set of amendments to the Designs Act (2000). Table of Contents Introduction The Concept Note which proposes changes to the Design Act (2000) accurately describes a set of amendments needed to bring Indian procedural law into conformity with the harmonized framework established by the DLT and its Regulations. It also introduces a series of broader reforms addressing subject matter scope, enforcement mechanisms, duration of protection, and the relationship between design and copyright law that are not required by the DLT. In addition, it proposes to join the Hague Agreement, which is not itself required by the DLT. While the substantive reforms and joining the Hague Agreement are consistent with the DLT’s requirements, they are not required by the DLT and may raise policy questions as to the scope of design law that will best further India’s industrial policy interests. Virtual Designs Protection India’s Proposal India is proposing to amend the Designs Act to protect graphical user interfaces (GUIs), icons, animations, and other virtual designs. Although the 2021 amendment to the Designs Rules aligned classification with the Locarno system to include GUIs and virtual designs, the Designs Act (2000) continues to refer to physical articles, creating uncertainty for digital designs. The proposal seeks to revise the definitions of “design” and “article” to include virtual and non-physical forms, including animated and screen-based designs, and to make related changes to infringement provisions so that protection does not depend on physical embodiment. DLT Comparison and Analysis India’s proposal to amend the Designs Act to expressly protect GUIs, icons, animated designs, and other virtual or non-physical designs is compatible with the DLT and its Regulations adopted on 22 November 2024. Article 2(1) of the DLT establishes that “[n]othing in this Treaty or the Regulations is intended to be construed as prescribing anything that would limit the freedom of a Contracting Party to prescribe such requirements of the applicable substantive law relating to industrial designs as it desires”. This provision clearly confirms that the Treaty does not harmonize substantive design law. It does not define what constitutes an “industrial design, ” nor does it limit the categories of designs that a Contracting Party may choose to protect. Consequently, a national decision to extend protection to virtual, animated, or non-physically embodied designs falls within the substantive autonomy expressly preserved by Article 2(1) . With respect to application formalities, Article 4 sets out an exhaustive list of permissible requirements. Among these is the requirement for “a representation of the industrial design” (Article 4(1)(a)(v)) and “an indication of the product or products which incorporate the industrial design, or in relation to which the industrial design is to be used” (Article 4(1)(a)(vi)). The wording does not restrict the “product” to a physical object. It refers more broadly to products that incorporate the design or in relation to which it is to be used. Assessment The DLT’s definitions are sufficiently flexible to accommodate screen-based images, sequences of views showing movement, or other visual depictions of digital designs. While extending design protection to GUIs and other visual representations is permissible under the DLT, one should note that there is significant criticism by scholars of this approach, especially in the United States of America, where such protection is often granted. The criticisms include: The inclusion of GUI protection in the proposal could raise concerns for India’s vibrant cell phone industry. India’s mobile phone industry has transformed into the second-largest global manufacturer as of 2025, with 99.2% of phones sold domestically being manufactured within the country. India has grown from just two mobile manufacturing units in 2014 to over 300 today. It currently manufactures more than 325–330 million mobile phones annually. The Indian smartphone industry in India has long faced challenges from international brands over uses of GUIs. Indian Patent Office (IPO) has frequently rejected GUI design applications (such as those from Amazon and UST Global) on the grounds that a GUI is not an “article of manufacture. ” The office argued that GUIs are software-driven, visible only when a device is “ON, ” and lack the “constant eye appeal” required for design protection. In UST Global (Singapore) Pte Ltd v. Controller of Patents, the Calcutta High Court held that GUIs can be considered a “design” as they appeal to the eye and influence consumer decisions but the IPO has continued to refuse the UST Global application upon reconsideration. Beyond registration disputes, tech giants like Zoom have contemplated legal action against Indian platforms like JioMeet for allegedly similar user interfaces, though such actions are often framed as copyright infringement due to the design registration hurdles mentioned above. Design-Copyright Interface India’s Proposal India is proposing to amend Section 15(2) of the Copyright Act (1957) to allow copyright protection to continue for designs that are registrable under design law but remain unregistered, while limiting that copyright protection to a maximum term of 15 years. At present, Section 15(1) of the Copyright Act (1957) excludes copyright protection for designs that are registered under the Designs Act (2000). However, Section 15(2) provides that where a design is capable of being registered under design law but is not registered, copyright in that work ceases once it has been reproduced more than fifty times by an industrial process. The objective is to reconcile copyright and design law by permitting protection while preventing long-term copyright monopolies over subject matter more appropriately governed by design law. DLT Comparison and Analysis This proposal falls entirely outside the scope of the Treaty. The DLT does not regulate the relationship between industrial design protection and copyright protection. Assessment India’s proposed reform of Section 15(2), permitting copyright protection for registrable but unregistered designs while limiting its term to 15 years, raises no compatibility issues under the DLT. It may, however, raise concerns under the Berne Convention, which states that the minimum term of copyrights over works of authorship must be 50 years

Blog, Design Law Treaty

Developing Countries' Accomplishments in the WIPO Design Law Treaty

Sean Flynn and Luca Schirru / 24 January, 2025

Last year, two new intellectual property treaties were adopted by the World Intellectual Property Organization — one on the disclosure of uses of genetic resources in patent applications and a second on applications for design law protection. Although the design law treaty was promoted by wealthy countries of the global north, the final outcome shows the impact of developing countries who advocated for deleting or softening provisions that regulated substantive design law while protecting the ability to require information related to Traditional Cultural Expressions (TCEs), Traditional Knowledge (TK), or biological and genetic resources (GR). Opening the closed list for application criteria The main intent of the Design Law Treaty was described as harmonizing procedures and formalities for applying for design law protection. There is very little substantive international law on design protection, and the treaty was not billed as creating such minimum requirements. However, by proposing to restrict the elements that may be requested in a design law application, the basic proposal for the treaty in effect restricted what elements could be considered in granting protection. The basic proposal for the treaty followed the Trademark Law Treaty in proposing a closed list of elements that could be required in an application. The closed nature of the list was made clear in subsection 2 of what was ultimately included as Article 4 of the treaty, which states: “[Prohibition of Other Requirements] No indication or element, other than those referred to in paragraph (1) and in Article 10, may be required in respect of the application.” The problem with a closed list of application criteria is that it limits the substantive criteria that governments can rely upon in granting design law protection. As Bagley (2018, 995-996) argued: “by delineating a closed list of application requirements that countries can impose on applicants, the DLT in effect moves beyond formalities to placing substantive limits on countries in relation to design registration”. In the early stages of consideration of the Treaty, developing countries focused on the lack of language in the closed list allowing countries to require disclosure of traditional cultural expressions, traditional knowledge, or genetic resources used in the design seeking protection. The basic proposal for the DLT included two alternatives on these issues: “ALTERNATIVE A [(ix) a disclosure of the origin or source of traditional cultural expressions, traditional knowledge or biological/genetic resources utilized or incorporated in the industrial design;]” “ALTERNATIVE B [(ix) an indication of any prior application or registration, or of other information , of which the applicant is aware, that is relevant to the eligibility for registration of the industrial design;]” During the negotiation, Knowledge Ecology International raised other issues that the United States and other laws require disclosure of in design law applications that were not included in the closed list. These included, for example, requirements to disclose uses of public funding and artificial intelligence in the creation of the design. There was considerable opposition from the “Group B” wealthy countries of the global north to the language in Alternative A including reference to “biological/genetic resources” in the permitted elements of an application. Delegations argued that such resources were not relevant to design law. In the end, the compromise text excluded direct mention of genetic resources but adopted open language that permits countries to require any application element deemed “relevant” to the registration of the design: Article 4 … (2) [Indication of Information] A Contracting Party may require, where permitted under the applicable law, that an application contain an indication of any prior application or registration, or of other information, including information on traditional cultural expressions and traditional knowledge, of which the applicant is aware, that is relevant to the eligibility for registration of the industrial design. (3) [Prohibition of Other Requirements] No indication or element, other than those referred to in paragraphs (1) and (2) and in Article 12, may be required in respect of the application. The final outcome thus permits countries to allow disclosures of genetic resource information as well as information about uses of public funding, artificial intelligence, and other elements that a country deems relevant to the registration. Eliminating Term of Protection The basic proposal for the DLT included two options for requiring a term of protection. Term of protection is indisputably substantive, and many countries opposed its inclusion in the treaty on this basis. But two other treaties — the Hague Agreement and the WTO’s TRIPS agreement — have minimum terms of protection of 5 years and 10 years respectively. A proposal by the USA would have harmonized members to a minimum 15-year term, which is the present US law. [Article 9Bis Term of protection A Contracting Party shall provide a term of protection for industrial designs of at least 15 years from either: (a) the filing date, or (b) the date of grant or registration.], proposed by USA.[Article 9Bis Term of protection Contracting Parties shall have the option to comply with Article 17 of the Hague Convention or Article 26 of the TRIPS Agreement.], proposed by Nigeria. There was united opposition to any term of protection in the agreement by the Africa Group, GRULAC, and APG. As a result, fairly early on in the negotiation, Article 9bis was dropped from the negotiating text and no term of protection was included in the final treaty. Making the Grace Period Optional The basic proposal included language on grace periods during which a design could be disclosed without affecting its registerability. There are no regulations of grace periods in the Patent Law Treaty, Trademark Law Treaty, or the Hague Agreement. Concerns were raised that this provision may disproportionately favor larger firms in weather countries that “can afford to disclose their designs publicly without immediately filing for protection, potentially stalling local competitors who lack the financial or legal capacity to navigate complex intellectual property landscapes”. The final text established a grace period of 12 months but made this provision subject to a reservation. Thus, countries may join the agreement without binding themselves to the grace period