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.

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Episode Transcript

SPEAKER_01 (00:00):
The neon jacket your avatar wears in the metaverse,

(00:03):
that slick swipe animation onyour banking app, even the
glowing keyboard on your phone.
Someone designed all that, buthere's this twist: design law
was born for chairs, lamps, andsneakers, not for digital vibes.
So, can a skin sue?
Let's find out.

SPEAKER_02 (00:20):
You are listening to Intangibilia, the podcast of
Intangible Law.
Plain talk about intellectualproperty.
Please welcome your host,Leticia Caminero.

SPEAKER_00 (00:31):
Welcome back to Intangibilia.
I'm Leticia Caminero, and withme, as always, is my co-host,
Arte Misa.

SPEAKER_01 (00:39):
Today we're diving into a topic that's been hiding
in plain sight, or maybe on yourscreen, design law, but not for
your chairs and teapots.
We're talking about digitaldesigns.

SPEAKER_00 (00:51):
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 peoplespend billions on them.

SPEAKER_01 (01:03):
And here's the kicker
for physical products, shoes,cars, furniture, not glowing
keyboards in a game or the swipepattern in your banking app.

SPEAKER_00 (01:14):
So the big question is
protected as designs?
And if so, how?

SPEAKER_01 (01:22):
We've got cases from the US, China, and India that
tried to answer exactly that.
And we'll also check in on newlaws in the EU, Japan, and
Brazil that are rewriting therules.

SPEAKER_00 (01:32):
And as always, a reminder, we're sharing insights
and stories, not giving legaladvice.
But if you're curious about howdesign law is evolving in the
digital age, you're in the rightplace.

SPEAKER_01 (01:44):
Let's scroll swipe and maybe even sue our way into
it.

SPEAKER_00 (01:51):
Before we jump into the cases, let's pause for a
legal pit stop.
What exactly is an industrialdesign right?
At its simplest, it protects howsomething looks, the shape,
configuration, pattern, orornamentation of a product, not
how it works, not what it's madeof.
Just the visual appeal.
Think of the curved silhouetteof a Coca-Cola bottle or the

(02:14):
pattern on a designer handbag.

SPEAKER_01 (02:16):
So it's the law saying yes, the way your stuff
looks can be a monopoly, nocopycats allowed on the catwalk
or the app store.

SPEAKER_00 (02:23):
Now, here's the historical snack.
Most design laws around theworld were drafted with physical
products in mind.
Furniture, cars, kitchengadgets.
The law said your design must beapplied to an article of
manufacture, which makes sensefor a lamp or a sneaker.

SPEAKER_01 (02:44):
But what about a screen layout on your iPhone or
the unlock animation you swipethrough every morning?
What about Fortnite skins, thecolorful outfits gamers spend
billions on, or even Nike's ARsneakers you try on virtually?
For decades, these were mostlyinvisible to design law.
Courts and offices wouldgenerally say, nice try, but
unless you stick that interfaceonto a phone drawing, it's not a

(03:07):
design.
Translation, often the lawbasically told digital
designers, come back when youcan print it out on a toaster.

SPEAKER_00 (03:14):
That's why companies often fail back on other forms
of IP.
Copyright to protect thecreative expression of graphics
or code, trademarks to protectbrand identity in the digital
realm, even unfair competitionlaw, but none of those gave the
same kind of look and feelexclusivity that design rights
can give.

(03:34):
Design law is about stoppingcompetitors from copying the
appearance, even if the functionis different.

SPEAKER_01 (03:42):
And let's be real, in the digital world, looks are
everything.
The way an app flows, the way askin stands out in a game,
that's what people pay for.
It's a whole economy ofaesthetics.

SPEAKER_00 (03:56):
Japan in 2020 said, all right, we'll allow graphical
user interface or GUIs and evenAR slash VR projections as
designs.

(04:18):
We're seeing a legal shift fromonly physical objects to visual
designs, whether physical ordigital.

SPEAKER_01 (04:26):
Wait, let's break down two key things that decide
whether a design is actuallyprotected.
The requirements forregistration and what's called
the ordinary observer test.
The test that sounds simpleuntil you actually meet the
ordinary observer and realizethey're not that ordinary.

SPEAKER_00 (04:43):
Right first, to register or protect a design, it
usually has to meet three basicconditions.
One, it must be new, meaning noidentical design has been
disclosed before.
Two, it must have individualcharacter, the overall visual
impression must differ fromexisting designs.
Three, and it must be visible.

(05:05):
The design has to be seen duringnormal use of the product.

SPEAKER_01 (05:10):
Invisible features don't count.
You can't protect the inside ofyour coffee machine, but you can
protect its outer shape.

SPEAKER_00 (05:34):
It's not about side-by-side perfection, but
about the overall impression.

SPEAKER_01 (05:40):
Or in plain terms, if a regular person glances at
both and says, Wait, aren'tthose identical?
You might have a case.

SPEAKER_00 (05:47):
Right.
And that's what makes digitaldesigns 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 thatout.

SPEAKER_01 (06:03):
So the test is simple.
Until the product moves, glows,or loads at 120 frames per
second, which means the stakesare getting higher.
Suddenly, your glowing appbutton isn't just pretty, it's
property.

SPEAKER_00 (06:17):
And that's why courts are now wrestling with
questions like how do youcompare two interfaces under the
ordinary observer or inform usertest?
What counts as novelty in adigital world?
And who's the infringer?
The app store, the developer, orthe end user.

SPEAKER_01 (06:36):
Or my favorite, can a swipe animation really stand
shoulder to shoulder with achair or a lamp in the eyes of
the law?
Spoilers, sometimes, yes.

SPEAKER_00 (06:44):
So, with that toolkit in mind, let's look at
how courts have actually handledor struggled with digital
designs.
Let's start in the UnitedStates, where courts have been
cautious, some might sayskeptical, about stretching
design patterns into digitalarena.
Back in 2014, we had PS productsvia Activation Blizzard.

(07:07):
The company behind a patentedstone gun knuckle hybrid claimed
activation infringed its designby showing similar weapons in
Call of Duty.
The court said no, a virtualdepiction in a video game is not
the same as making or sellingthe patented article.
It was one of the first times aUS court drew a sharp line

(07:29):
between digital renderings anddesign protected products.

SPEAKER_01 (07:34):
So if you're shooting pixels, you're safe.
The judge basically toldActivision, your in-game gun can
kill zombies, but it won't killyou in court.

SPEAKER_00 (07:46):
This was the first real test of a GUI design patent
in the fintech world.
Weby held a design patent on amobile banking app interface,
and they sued PNC, claiming itsapp looked too similar.
The court examined the designsunder the classic ordinary
observer test.

(08:07):
Would an ordinary observer thinkthe two designs are
substantially the same?
The judge wasn't convinced.
In fact, he questioned whetherusers are even purchasers of
GUIs in the traditional sense,and the case was dismissed.

SPEAKER_01 (08:22):
In other words, courts treat GUI patents like
that awkward plus one at awedding, technically invited,
but nobody's sure what to dowith them.

SPEAKER_00 (08:32):
And it's not just Wii Pay.
Um a wave of fintech lossestried to enforce animated GUI
design patents against banks andapps.
Many were dismissed, somesettled quietly, and the patent
trial and appeal board evencancelled certain GUI patents as
too obvious.

SPEAKER_01 (08:52):
So in the US, the message is clear.
Now let's move to China, wherethe story is almost the
opposite.
In 2017, the Beijing IP court inKihu 360 v Jiangmin said, a GUI

(09:17):
isn't a product.
Kihu had a GUI design patent forits antivirus software
interface, but the defendantonly 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 revisedthe decision regarding that the

(09:39):
defendant was not tied to thehardware device, not the
software.
That's basically the printed ona toaster rule.
Again, if the GUI doesn't liveon a gadget, it doesn't live in
the courtroom.

SPEAKER_00 (09:50):
But by 2021, everything shifted.
In Beijing Jin Shon BurtonMundon, a key por app case, the
Shanghai IP court recognizedthat the software provider
itself was effectively themanufacturer of the product.
By distributing the app, Mundonwas enabling the patented Giui

(10:11):
to appear on devices.
The court found infringement,and the Shanghai High Court
affirmed it in 2022.
This was a breakthrough.

(10:45):
In India, the battlefield hasbeen at the registration stage
in USD Globally Controller ofDesigns 2023.
The design's office refused toregister a GUI saying it wasn't
applied to an article.
The Calcutta High Courtoverturned that refusal.
The judges reasoned that GUIscan be designs if they create

(11:07):
visual appeal and are appliedeven if virtually to a divide.

(11:31):
Because while judges debatewhether a swipe animation is
like a chair, legislators arerewriting the rules.

SPEAKER_01 (11:44):
For the first time, the law explicitly says that a
product can be non-physical.
That means GUIs, icons, sets oficons, typefaces, even
animations and spatialarrangements in virtual
environments are covered.

SPEAKER_00 (11:59):
So imagine the flowing transitions in an iPhone
app or the way a VR gallerydisplays paintings in 3D space.
Under EU law, those can now beregistered as designs.

(12:22):
For example, a holographic menuprojected by smart glasses or a
virtual keyboard projected onyour desk.

SPEAKER_01 (12:30):
In Brazil, the IP office updated its regulations
in 2023 to explicitly acceptanimated GUI designs.

(13:00):
Canada followed in 201-82021with reforms allowing animated
designs.

SPEAKER_00 (13:08):
India amended its design rules in 2021 to include
screen displays and its cores,like in the USD Cloud case,
confirmed that GOIS can indeedqualify.

SPEAKER_01 (13:29):
Switzerland allows GUIs as long as they're shown on
a device, but doesn't covermoving transitions, only static
images.

SPEAKER_00 (13:38):
Turkey explicitly recognizes GUIs.
Australia reformed its designlaw in 2021, but it still
requires designs to be appliedto a product.
That means GIS tied to a screenare registrable, but purely
virtual designs aren't yet.

(13:58):
Taken together, these reformsshow a global shift from
protecting just physical objectsto embracing the digital and
even the virtual.

SPEAKER_01 (14:08):
Which means if you're a digital designer, you
have to pick your battlegrounds.
If the laws are catching up andcourts are starting to weigh in,
where are the pressure points?

SPEAKER_00 (14:19):
Most design laws were written for static shapes,
but digital designs often move.
An icon that bounces, a loadingbar that spins, a VR menu that
slides open.
How do you capture that in aregistration?

SPEAKER_01 (14:36):
Do you submit multiple static frames?
And if so, what's protected?
The frames or the wholeanimation?
So do you suit for frame by fametheft or for stealing the whole
vibe of your animation?

Another question (14:46):
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, anapp store distributes it, and
millions of users display it,who is liable?

SPEAKER_00 (15:02):
And different years: metaverse wearables and AR slash
VR environments.
If you design a virtual sneakeror a 3D gallery, should that be
protected the same way as itsphysical counterpart?

SPEAKER_01 (15:17):
Does copying a skin in one metaverse platform count
as design infringement?
What if it's just an avatar modshared between friends?
In other words, can you stealsomeone's virtual jacket and
still say it's just cosplay?

SPEAKER_00 (15:30):
So after all this courtroom drama and law reform,
what should our listeners takeaway?
What do we take away from allthis?

SPEAKER_01 (15:39):
First, creativity is expanding faster than the law,
but that's a good thing.
It means we're building newspaces that challenge old
frameworks.
Every interface, every virtualobject, every wearable pixel is
proof that innovation neverwaits.

SPEAKER_00 (15:53):
Second, we're witnessing a global shift.
Digital design is finally beingrecognized as more than
decoration.
It's part of how we experiencetechnology.
Courts and lawmakers arelearning to see beauty as value.

SPEAKER_01 (16:10):
Third, the tools are evolving.
Designers now have real pathwaysto protect what they create,
whether it's a physical shape, adigital interface, or an AR
environment.
And that means more confidenceto innovate boldly.

SPEAKER_00 (16:25):
Fourth, the line between tangible and digital
design is disappearing, a swipe,a skin, a scroll, they're all
part of the same creativeuniverse.
And Design Law is learning tospeak that new language.

SPEAKER_01 (16:44):
Knowing your rights gives you freedom to experiment,
share, and scale your ideas withconfidence.

(17:14):
It's simple, clear, and made forthe real world.
Whether you're designing in 3D,coding an app, or sketching your
next product, protection for theinventive mind helps you make
innovation something you canactually own.

SPEAKER_00 (17:26):
You can find it now on Amazon.
And if you enjoyed this episode,share it with someone who's
creating in the digital spacebecause the future of design
belongs to those who protecttheir imagination.

SPEAKER_01 (17:37):
Keep creating, keep learning, and remember, your
ideas are meant to last longerthan the trend.

SPEAKER_02 (17:47):
Thank you for listening to Intangible, the
podcast of Intangible Law.
Plain talk about intellectualproperty.
Did you like what we talkedtoday?
Please share with your network.
Do you want to learn more aboutintellectual property?
Subscribe now on your favoritepodcast player.
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(18:07):
Visit our websitewww.intangiblia.com.
Copyright Leticia Caminero 2020.
All rights reserved.
This podcast is provided forinformation purposes only.