When a design is copied by a competitor: what to do first
A competitor copying a design calls for a short sequence of actions, not one filing. Fix the evidence, check whether the design or an overlapping mark is registered, then send a formal notice naming the right and the act. Deadlines for opposition and interim relief start running from the day the copy became visible.
The legal basis behind the reaction
The design itself, registered or unregistered, is governed by its own regime. That regime sits outside a single Union regulation and is not restated here. Two Union instruments become relevant once the copy touches a registered mark or crosses a border. Where the copied design also functions as a shape, packaging or pattern mark registered at Union level, the applicable basis is Regulation (EU) 2017/1001 (EUTMR). Where the copied goods physically cross an external border of the Union, the applicable basis is Regulation (EU) No 608/2013, which lets a rights holder ask customs authorities to detain suspect consignments.
What changes once the copy is confirmed
Confirmation changes the clock, not the facts. A limitation period for an infringement claim, and a short deadline for interim relief, both start running from the moment the infringing product reached the market. Evidence of first use and of the copy also decays: retailers restock, packaging changes, and witnesses forget dates. A delay of a few weeks rarely closes the door, but it narrows the remedies still available and raises the cost of proving them.
What to do first
The sequence below applies whether the copied element is packaging, a product shape or a surface pattern.
| Step | Action | Who acts |
|---|---|---|
| 1 | Freeze the evidence: dated samples, screenshots, purchase receipts | In-house team, before any outreach |
| 2 | Check the registration status of the design and any overlapping mark | Instructed counsel |
| 3 | Send a formal notice identifying the right and the infringing act | Instructed counsel |
| 4 | If goods are crossing a border, lodge a customs application | Rights holder, through counsel |
| 5 | Decide on interim relief if the competitor does not stop | Rights holder and counsel jointly |
Who decides, and where
Three bodies can become involved, and each answers a different question. The EUIPO decides on the validity of a European Union trade mark, and on opposition or invalidity actions, under Regulation (EU) 2017/1001 (EUTMR). A national court, sitting as an EU trade mark court where relevant, decides infringement claims and interim relief for both the mark and the design. Customs authorities decide, in the first instance, whether to detain goods at the border under Regulation (EU) No 608/2013; a court then confirms or lifts that detention.
Scenarios that change the answer
If the disputed feature is functional rather than ornamental, the case may turn into a patent question rather than a design one. The reasoning then follows a different priority logic, and What to do first in this situation and who decides in a granted-invention dispute differs from the design track, even though the first days look the same: freeze the evidence, check the register, notify.
If the copying party once held a licence to use the design and that licence has lapsed, the dispute is closer to a contract question than a pure infringement. When support ends but the licence continues: what to do next under that agreement usually decides the outcome before any court does.
If the competitor operates from outside the Union and only re-exports the copied product through a Member State, the enforcement path depends on where a court will accept jurisdiction. The reasoning resembles When the issuer changes jurisdiction and its limits on enforcement described there for a different asset class, and the same caution applies: check the forum before instructing anyone.
Limits and sources
This page sets out procedure. It does not decide whether a design or a mark is valid, and it does not quantify damages or the cost of an interim application. It also does not establish who currently holds a given registered right in a specific jurisdiction; that is a factual question, not a procedural one. A registry-based extract of that kind belongs to a different layer of this site, for example the Asset in Sweden and the deadline report.
Checked against Regulation (EU) 2017/1001 (EUTMR) and Regulation (EU) No 608/2013. State as of 6 March 2025.
Related reading
The mirror situation, where a new brand collides with a right that already existed, is covered separately: When a rebrand collides with an earlier right and a design or a mark that predates the launch follows the same first-day discipline from the other side.
A first response from a partner follows within minutes during business hours. A price for the engagement follows within one working day, once the design, the registers and the jurisdictions involved are known.
FAQ
What is the first step when a design is copied by a competitor?
Fix the evidence before contacting anyone: dated samples, screenshots and purchase records. Only after that check whether the design or an overlapping mark is registered.
Which deadline is already running?
A limitation period for an infringement claim starts from the day the copied product reached the market. Deadlines for interim relief run on a similar, often shorter, clock.
Who decides, and on what evidence?
A national court decides infringement and interim relief on the evidence of first use, the similarity of the designs and the effect on the market. The EUIPO decides validity and opposition questions for a European Union trade mark under Regulation (EU) 2017/1001 (EUTMR).