An industrial design does not have to be registered with the Israel Patent Office to qualify for protection in Israel. But merely creating a product and placing it on the market does not establish an enforceable unregistered design right. A claimant must prove that the appearance meets the statutory conditions, identify the date from which protection runs, establish ownership and demonstrate an act that infringes the particular right.
For foreign companies and their counsel, the key distinction is between copying a protected design and independently developing a product with a similar appearance. Sections 4, 61 and 67–69 of Israel’s Designs Law, 5777-2017, distinguish the liability of a party manufacturing copies from the liability of a distributor, importer or retailer. Since an unregistered design does not appear in the public Register of Designs, evidence of the original disclosure and the defendant’s knowledge can be critical.
When Does an Unregistered Design Qualify for Protection in Israel?
Section 4(a) sets out two cumulative conditions. The design must be new and possess individual character under Chapter 2 of the Designs Law. In addition, a product embodying the design must have been offered for sale or commercially distributed to the public in Israel, by the proprietor or on its behalf, including over the internet, within six months of the relevant date.
The second condition is particularly important to overseas manufacturers. Launching a product in Europe or the United States does not, by itself, establish ordinary unregistered design protection in Israel. The foreign first disclosure may start the six-month period, while commercial availability in Israel must be proved separately. Section 4(b) provides for a possible treaty-based arrangement subject to an implementing order; it is not a general waiver of the six-month requirement.
Under Sections 6 and 7, novelty requires the absence of an identical design, or one differing only in immaterial details, made public anywhere before the relevant date. Individual character depends on whether the design produces a different overall impression on an informed user compared with earlier publicly available designs. Section 10 excludes specified appearances dictated solely by technical function or necessary interconnection. The right protects visual appearance, not the general idea of producing that kind of article.
First Disclosure, the Six-Month Israeli Market Requirement and the Three-Year Term
For an unregistered design, the “relevant date” is the date on which the proprietor or someone acting on its behalf first made the design or product public, whether in Israel or abroad, as defined in Section 1. It must be distinguished from the date of the first Israeli sale or commercial offer.
A product unveiled at a trade show abroad may therefore begin the six-month clock even if Israeli distribution begins later. Useful records include dated catalogues, launch announcements, archive copies of web pages, trade-show records, purchase orders, advertisements and invoices evidencing the first Israeli offer or distribution.
Section 65 gives an eligible unregistered design three years of protection from the relevant date. Further sales, new production batches or a later launch in Israel do not restart this term. Section 64 separately permits an application to register the unregistered design within 12 months of the relevant date. The filing window and the period of unregistered protection are distinct; foreign companies expecting long-term Israeli sales should assess registration before the 12-month period expires.
Direct Infringement: Commercial Manufacture Based on Copying
Section 61(a) entitles the owner of a qualifying unregistered design to prevent commercial manufacture of a product whose design copies the protected design. The restriction covers copying producing an identical appearance and copying resulting in an overall impression that is not different to an informed user. Section 67 treats the prohibited exploitation, without authorization and after the relevant date, as infringement, whether carried out directly or through another party.
The word copying matters. Visual resemblance alone does not establish that one manufacturer copied another: products may be developed independently against the same technical requirements and design conventions. Conversely, adding minor differences that do not affect the informed user’s overall impression will not necessarily avoid liability where copying is proved.
Outsourcing production does not necessarily remove responsibility from a company that arranged it. Contracts with factories, production instructions, design files, approval of samples and correspondence with suppliers can show who caused the commercial manufacture of the copied product. Foreign manufacturers should examine the Israeli commercial acts alleged against each defendant rather than assume that overseas production or a local sales intermediary automatically determines liability.
How Can Copying Be Proved Without an Admission?
Proof of copying commonly relies on circumstantial evidence. Access to the earlier design, prior dealings between the parties, transmission of samples or CAD files to a factory, closely matching unusual visual details, and a development timeline inconsistent with independent creation may collectively support the allegation.
The weight of resemblance depends partly on the existing design field. Where many products share familiar styling or functional constraints, resemblance in conventional features is less persuasive evidence of copying. A comparison with prior designs may therefore assist both validity analysis and the assessment of whether the defendant derived the contested appearance from the claimant’s product.
A defendant may present independently dated sketches, design iterations, development records, internal correspondence and supplier files. A claimant should preserve equivalent evidence of first creation and disclosure, but those documents do not replace proof of copying by the alleged infringer.
Indirect Infringement: Importation, Distribution and Retail Sales
Section 68 extends liability in defined circumstances beyond the party that manufactured the copied product. The listed commercial acts include selling or renting, offering or holding products for those purposes, commercial-scale distribution and importing products into Israel other than for personal use.
The statute requires that, when carrying out the relevant act, the defendant knew or should have known that the product was infringing. Awareness that a competing product looks similar is not necessarily the same as knowledge of infringement. Evidence may concern the supplier’s identity, the retail chain’s relationship with the manufacturer, warning letters, purchase terms and steps taken after the rights holder made its position known.
Section 68(b) defines the relevant infringing product and excludes a product manufactured outside Israel with the authority of the unregistered design owner or someone on its behalf. Thus importing an authentic product manufactured with permission should not automatically be characterized as importing an infringing copy simply because the importer lacks an exclusive Israeli distributorship. The commercial and factual circumstances still require examination.
Marking an Unregistered Design: The IL-URD Notice
Section 62 permits marking eligible unregistered designs in accordance with the regulations, including identification of the relevant date. Regulation 93 of the Designs Regulations, 5779-2019, provides for notices such as the Hebrew expression for “unregistered design”, the Hebrew abbreviation and the designation IL-URD, subject to its rules on the display and timing of the marking, including online offerings.
Under Section 69, proper marking gives rise to a rebuttable presumption that a party acting under Section 67 or 68 knew the owner regarded the design as eligible for unregistered protection. This is not conclusive proof of novelty, individual character or copying. Marking cannot create a right where the substantive eligibility conditions are absent.
The presumption of awareness of the asserted right should also be distinguished from Section 68’s requirement concerning knowledge that a particular product infringes. Even without marking, correspondence and previous notices may be relevant to actual knowledge. The rules also affect the assessment of innocent-infringer arguments.
Ownership and Standing Without a Public Registration
Section 14(b) presumes, subject to contrary proof, that the person who first made the unregistered design public, or on whose behalf it was first made public, owns the right. This is a rebuttable presumption rather than an answer to every dispute involving an employee, design contractor, distributor or affiliated company.
Employment, commission and assignment agreements should be checked against the ownership provisions of the Designs Law. Section 71 governs standing to sue, including the position of an exclusive licensee subject to the statutory conditions. Where the claimant relies on a design supplied by an external designer without documented title, the claim may fail notwithstanding apparent copying.
Available Defenses to an Unregistered Design Claim
Section 70(b) permits the defendant to rely on ineligibility for unregistered protection as a defense. The broader defense strategy is examined in Defending Design Infringement Claims in Israel. Possible issues include earlier disclosure, lack of individual character, failure to meet the six-month Israeli market condition, expiration of the three-year term or an appearance excluded by Section 10.
A manufacturer can contest copying through independent-development evidence. An importer or retailer sued under Section 68 can contest the necessary knowledge, the relevant commercial act, or whether the goods were made with the design owner’s authority. An absence of registration is not a complete defense; registration is not required for the qualifying unregistered right.
Injunctions, Damages and Orders for Accounts in Israel
Sections 73–78 establish remedies for infringement under the Designs Law, including unregistered design infringement. Section 74 addresses injunctions. Section 75 permits statutory damages without proof of loss of up to NIS 100,000 per infringement, subject to judicial discretion. Infringements forming one series of acts are treated as one infringement for this purpose; the ceiling is not multiplied automatically by every unit sold.
Under Section 76, the court may order accounts concerning the infringement. Section 77 provides for appropriate orders concerning infringing products and certain assets used in their production. Section 78 protects an innocent infringer against damages if the statutory conditions concerning knowledge of design rights are met, but does not itself authorize continued infringement. The court may consider injunctive relief separately.
In an interim-injunction application, the claimant must present evidence of eligibility, the relevant date, the suspected copying and the practical need for urgent relief. An unregistered design lacks the prima facie validity associated with registration under Section 31(c), making dated launch and prior-design evidence especially important.
Unregistered Designs, Passing Off and Unjust Enrichment
Before the Designs Law, the Israeli Supreme Court considered protection of unregistered industrial designs through unjust-enrichment principles, notably in A.Sh.I.R. Import, Manufacturing and Distribution Ltd. v. Forum Accessories and Consumer Products Ltd., Civil Leave to Appeal 5768/94 (23 September 1998).
The 2017 Designs Law subsequently created a specific unregistered design regime. Section 2 provides that design rights exist only under the Law. It is therefore unsafe to assume that the earlier unjust-enrichment doctrine automatically substitutes for the statute’s eligibility or infringement requirements.
Distinct conduct may give rise to other causes of action. Passing off, for example, requires its own elements, including goodwill and a risk of misrepresentation, rather than merely a product with individual visual character. Copyright or trademark claims must similarly be assessed under their separate statutes.
Evidence Foreign Design Owners Should Preserve Before Litigation
The rights holder should identify the protected appearance through complete photographs and original files showing the product as first disclosed, not solely a later revised commercial version. It should document global first disclosure, the qualifying Israeli offer or distribution, ownership, the three-year term and relevant earlier designs.
For a manufacturer, evidence may include access to the original design, production files and contracts with factories. For an importer or retailer, records of goods’ origin, transactions, knowledge and notices are important. Test purchases, invoices and dated product photographs should identify the particular defendant and its acts.
For the underlying statute, see the Israel Patent Office’s English translation of the Designs Law and its English translation of the Designs Regulations. The Hebrew text prevails in case of inconsistency. For litigation assistance in Israel, see Design Litigation in Israel.
