Intangiblia™
#1 Podcast on Goodpods - Intellectual Property Indie Podcasts
#3 Podcast on Goodpods - Intellectual Property Podcast
Plain talk about Intellectual Property. Podcast of Intangible Law™
Intangiblia™
The Look of the Law: Courts Confront Digital Design Rights
Swipe once and everything changes: not just your screen, but the law that decides who owns the look and feel of our digital world. We dig into how design law—built for chairs, lamps, and sneakers—now grapples with GUIs, animations, and metaverse wearables, and why that shift is reshaping how creators protect their work. From the basics of industrial design rights to the thorny ordinary observer test, we explain how novelty, individual character, and visibility play out when beauty lives in motion, frames per second, and immersive spaces.
We walk through pivotal cases across the United States, China, and India, showing where courts drew hard lines on virtual depictions and where they reimagined who “makes” a product when software renders the interface in users’ hands. Then we explore major reforms in the EU, Japan, Brazil, Canada, and beyond, where lawmakers explicitly recognize non-physical products, GUIs, icons, typefaces, animations, and spatial AR/VR arrangements. If you design apps, skins, or 3D experiences, this is the practical roadmap you need to understand registration hurdles, frame-based filings for animated designs, and emerging standards for comparing interfaces under real-world use.
We don’t stop at doctrine. Expect clear takeaways on building a layered IP strategy—combining design registrations with trademarks and copyright—plus guidance on liability in digital ecosystems where developers create, platforms distribute, and millions of users display. We also tackle metaverse questions: when does copying a virtual jacket cross into infringement, and how should creators think about identity, status, and interoperability across platforms? By the end, you’ll see why the line between tangible and digital design is fading—and how that gives creators confidence to innovate boldly while staying protected.
If this conversation sparks ideas, share it with a designer or founder in your life, subscribe for future deep dives, and leave a quick review to help more creators find the show.
Check out "Protection for the Inventive Mind" – available now on Amazon in print and Kindle formats.
The neon jacket your avatar wears in the metaverse, that slick swipe animation on your banking app, even the glowing keyboard on your phone. Someone designed all that, but here's this twist: design law was born for chairs, lamps, and sneakers, not for digital vibes. So, can a skin sue? Let's find out.
SPEAKER_02:You are listening to Intangibilia, the podcast of Intangible Law. Plain talk about intellectual property. Please welcome your host, Leticia Caminero.
SPEAKER_00:Welcome back to Intangibilia. I'm Leticia Caminero, and with me, as always, is my co-host, Arte Misa.
SPEAKER_01:Today we're diving into a topic that's been hiding in plain sight, or maybe on your screen, design law, but not for your chairs and teapots. We're talking about digital designs.
SPEAKER_00:Things like the layout of your favorite app, the skins you buy for your avatar, even the little animations that make your phone feel smooth. They're everywhere, and people spend billions on them.
SPEAKER_01:And here's the kicker: Design laws were written for physical products, shoes, cars, furniture, not glowing keyboards in a game or the swipe pattern in your banking app.
SPEAKER_00:So the big question is: can those digital looks be protected as designs? And if so, how?
SPEAKER_01:We've got cases from the US, China, and India that tried to answer exactly that. And we'll also check in on new laws in the EU, Japan, and Brazil that are rewriting the rules.
SPEAKER_00:And as always, a reminder, we're sharing insights and stories, not giving legal advice. But if you're curious about how design law is evolving in the digital age, you're in the right place.
SPEAKER_01:Let's scroll swipe and maybe even sue our way into it.
SPEAKER_00:Before we jump into the cases, let's pause for a legal pit stop. What exactly is an industrial design right? At its simplest, it protects how something looks, the shape, configuration, pattern, or ornamentation of a product, not how it works, not what it's made of. Just the visual appeal. Think of the curved silhouette of a Coca-Cola bottle or the pattern on a designer handbag.
SPEAKER_01:So it's the law saying yes, the way your stuff looks can be a monopoly, no copycats allowed on the catwalk or the app store.
SPEAKER_00:Now, here's the historical snack. Most design laws around the world were drafted with physical products in mind. Furniture, cars, kitchen gadgets. The law said your design must be applied to an article of manufacture, which makes sense for a lamp or a sneaker.
SPEAKER_01:But what about a screen layout on your iPhone or the unlock animation you swipe through every morning? What about Fortnite skins, the colorful outfits gamers spend billions on, or even Nike's AR sneakers you try on virtually? For decades, these were mostly invisible to design law. Courts and offices would generally say, nice try, but unless you stick that interface onto a phone drawing, it's not a design. Translation, often the law basically told digital designers, come back when you can print it out on a toaster.
SPEAKER_00:That's why companies often fail back on other forms of IP. Copyright to protect the creative expression of graphics or code, trademarks to protect brand identity in the digital realm, even unfair competition law, but none of those gave the same kind of look and feel exclusivity that design rights can give. Design law is about stopping competitors from copying the appearance, even if the function is different.
SPEAKER_01:And let's be real, in the digital world, looks are everything. The way an app flows, the way a skin stands out in a game, that's what people pay for. It's a whole economy of aesthetics.
SPEAKER_00:Japan in 2020 said, all right, we'll allow graphical user interface or GUIs and even AR slash VR projections as designs. We're seeing a legal shift from only physical objects to visual designs, whether physical or digital.
SPEAKER_01:Wait, let's break down two key things that decide whether a design is actually protected. The requirements for registration and what's called the ordinary observer test. The test that sounds simple until you actually meet the ordinary observer and realize they're not that ordinary.
SPEAKER_00:Right first, to register or protect a design, it usually has to meet three basic conditions. One, it must be new, meaning no identical design has been disclosed before. Two, it must have individual character, the overall visual impression must differ from existing designs. Three, and it must be visible. The design has to be seen during normal use of the product.
SPEAKER_01:Invisible features don't count. You can't protect the inside of your coffee machine, but you can protect its outer shape.
SPEAKER_00:It's not about side-by-side perfection, but about the overall impression.
SPEAKER_01:Or in plain terms, if a regular person glances at both and says, Wait, aren't those identical? You might have a case.
SPEAKER_00:Right. And that's what makes digital designs tricky. In a world of icons and swipes, who's the ordinary observer? A gamer? A banker? A toddler with an iPad? Courts are still figuring that out.
SPEAKER_01:So the test is simple. Until the product moves, glows, or loads at 120 frames per second, which means the stakes are getting higher. Suddenly, your glowing app button isn't just pretty, it's property.
SPEAKER_00:And that's why courts are now wrestling with questions like how do you compare two interfaces under the ordinary observer or inform user test? What counts as novelty in a digital world? And who's the infringer? The app store, the developer, or the end user.
SPEAKER_01:Or my favorite, can a swipe animation really stand shoulder to shoulder with a chair or a lamp in the eyes of the law? Spoilers, sometimes, yes.
SPEAKER_00:So, with that toolkit in mind, let's look at how courts have actually handled or struggled with digital designs. Let's start in the United States, where courts have been cautious, some might say skeptical, about stretching design patterns into digital arena. Back in 2014, we had PS products via Activation Blizzard. The company behind a patented stone gun knuckle hybrid claimed activation infringed its design by showing similar weapons in Call of Duty. The court said no, a virtual depiction in a video game is not the same as making or selling the patented article. It was one of the first times a US court drew a sharp line between digital renderings and design protected products.
SPEAKER_01:So if you're shooting pixels, you're safe. The judge basically told Activision, your in-game gun can kill zombies, but it won't kill you in court.
SPEAKER_00:This was the first real test of a GUI design patent in the fintech world. Weby held a design patent on a mobile banking app interface, and they sued PNC, claiming its app looked too similar. The court examined the designs under the classic ordinary observer test. Would an ordinary observer think the two designs are substantially the same? The judge wasn't convinced. In fact, he questioned whether users are even purchasers of GUIs in the traditional sense, and the case was dismissed.
SPEAKER_01:In other words, courts treat GUI patents like that awkward plus one at a wedding, technically invited, but nobody's sure what to do with them.
SPEAKER_00:And it's not just Wii Pay. Um a wave of fintech losses tried to enforce animated GUI design patents against banks and apps. Many were dismissed, some settled quietly, and the patent trial and appeal board even cancelled certain GUI patents as too obvious.
SPEAKER_01:So in the US, the message is clear. Now let's move to China, where the story is almost the opposite. In 2017, the Beijing IP court in Kihu 360 v Jiangmin said, a GUI isn't a product. Kihu had a GUI design patent for its antivirus software interface, but the defendant only provided software, not physical computers. The court dismissed the claim, reasoning that the design patent was tied to the hardware device, not the software. A week later, a court revised the decision regarding that the defendant was not tied to the hardware device, not the software. That's basically the printed on a toaster rule. Again, if the GUI doesn't live on a gadget, it doesn't live in the courtroom.
SPEAKER_00:But by 2021, everything shifted. In Beijing Jin Shon Burton Mundon, a key por app case, the Shanghai IP court recognized that the software provider itself was effectively the manufacturer of the product. By distributing the app, Mundon was enabling the patented Giui to appear on devices. The court found infringement, and the Shanghai High Court affirmed it in 2022. This was a breakthrough. In India, the battlefield has been at the registration stage in USD Globally Controller of Designs 2023. The design's office refused to register a GUI saying it wasn't applied to an article. The Calcutta High Court overturned that refusal. The judges reasoned that GUIs can be designs if they create visual appeal and are applied even if virtually to a divide. Because while judges debate whether a swipe animation is like a chair, legislators are rewriting the rules.
SPEAKER_01:For the first time, the law explicitly says that a product can be non-physical. That means GUIs, icons, sets of icons, typefaces, even animations and spatial arrangements in virtual environments are covered.
SPEAKER_00:So imagine the flowing transitions in an iPhone app or the way a VR gallery displays paintings in 3D space. Under EU law, those can now be registered as designs. For example, a holographic menu projected by smart glasses or a virtual keyboard projected on your desk.
SPEAKER_01:In Brazil, the IP office updated its regulations in 2023 to explicitly accept animated GUI designs. Canada followed in 201-82021 with reforms allowing animated designs.
SPEAKER_00:India amended its design rules in 2021 to include screen displays and its cores, like in the USD Cloud case, confirmed that GOIS can indeed qualify.
SPEAKER_01:Switzerland allows GUIs as long as they're shown on a device, but doesn't cover moving transitions, only static images.
SPEAKER_00:Turkey explicitly recognizes GUIs. Australia reformed its design law in 2021, but it still requires designs to be applied to a product. That means GIS tied to a screen are registrable, but purely virtual designs aren't yet. Taken together, these reforms show a global shift from protecting just physical objects to embracing the digital and even the virtual.
SPEAKER_01:Which means if you're a digital designer, you have to pick your battlegrounds. If the laws are catching up and courts are starting to weigh in, where are the pressure points?
SPEAKER_00:Most design laws were written for static shapes, but digital designs often move. An icon that bounces, a loading bar that spins, a VR menu that slides open. How do you capture that in a registration?
SPEAKER_01:Do you submit multiple static frames? And if so, what's protected? The frames or the whole animation? So do you suit for frame by fame theft or for stealing the whole vibe of your animation? Another question: Who's the infringer? In the physical world, infringement usually comes from manufacturers or sellers. In digital space, it's trickier. If a developer codes the app, an app store distributes it, and millions of users display it, who is liable?
SPEAKER_00:And different years: metaverse wearables and AR slash VR environments. If you design a virtual sneaker or a 3D gallery, should that be protected the same way as its physical counterpart?
SPEAKER_01:Does copying a skin in one metaverse platform count as design infringement? What if it's just an avatar mod shared between friends? In other words, can you steal someone's virtual jacket and still say it's just cosplay?
SPEAKER_00:So after all this courtroom drama and law reform, what should our listeners take away? What do we take away from all this?
SPEAKER_01:First, creativity is expanding faster than the law, but that's a good thing. It means we're building new spaces that challenge old frameworks. Every interface, every virtual object, every wearable pixel is proof that innovation never waits.
SPEAKER_00:Second, we're witnessing a global shift. Digital design is finally being recognized as more than decoration. It's part of how we experience technology. Courts and lawmakers are learning to see beauty as value.
SPEAKER_01:Third, the tools are evolving. Designers now have real pathways to protect what they create, whether it's a physical shape, a digital interface, or an AR environment. And that means more confidence to innovate boldly.
SPEAKER_00:Fourth, the line between tangible and digital design is disappearing, a swipe, a skin, a scroll, they're all part of the same creative universe. And Design Law is learning to speak that new language.
SPEAKER_01:Knowing your rights gives you freedom to experiment, share, and scale your ideas with confidence. It's simple, clear, and made for the real world. Whether you're designing in 3D, coding an app, or sketching your next product, protection for the inventive mind helps you make innovation something you can actually own.
SPEAKER_00:You can find it now on Amazon. And if you enjoyed this episode, share it with someone who's creating in the digital space because the future of design belongs to those who protect their imagination.
SPEAKER_01:Keep creating, keep learning, and remember, your ideas are meant to last longer than the trend.
SPEAKER_02:Thank you for listening to Intangible, the podcast of Intangible Law. Plain talk about intellectual property. Did you like what we talked today? Please share with your network. Do you want to learn more about intellectual property? Subscribe now on your favorite podcast player. Follow us on Instagram, Facebook, LinkedIn, and Twitter. Visit our website www.intangiblia.com. Copyright Leticia Caminero 2020. All rights reserved. This podcast is provided for information purposes only.
