Protecting virtual designs in Singapore and Malaysia

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Protecting virtual designs in Singapore and Malaysia

Singapore and Malaysia As digital products and virtual environments become increasingly important, jurisdictions have responded differently to the challenge of protecting GUIs and other virtual designs. Singapore has introduced legislative changes that expressly recognise and accommodate such designs within its registered designs regime. In contrast, Malaysia currently has no specific statutory provisions or published guidance dealing with GUIs or purely virtual designs, resulting in a less certain protection landscape. Businesses operating across both markets should therefore be aware that filing strategies and available protection may differ significantly between the two jurisdictions.

Protecting virtual designs in Singapore Singapore is one of the most progressive jurisdictions in the Asia-Pacific region for the protection of virtual designs. Unlike many countries whose design laws remain focused on physical products, Singapore expressly recognises virtual designs, including graphical user interfaces (GUIs), as registrable subject matter under the Registered Designs Act 2000 (RDA). The current framework was introduced through amendments that came into effect on 30 October 2017 and was specifically designed to accommodate digital interfaces, screen-based designs and certain projected non-physical designs.

Protecting virtual designs in Singapore A distinctive feature of Singapore's regime is its recognition of both designs applied to physical articles and designs applied to certain non-physical products. As a result, protection is not necessarily limited to interfaces displayed on conventional screens. This places Singapore among a relatively small group of jurisdictions that have enacted legislation specifically directed towards virtual and projected designs.

Protecting virtual designs in Singapore Under section 2(1) of the RDA, a design consists of features of shape, configuration, colours, pattern or ornament applied to an article or non-physical product that give it its appearance. The express inclusion of colours as a registrable design feature may be particularly significant for graphical user interfaces (GUIs), as some of which rely heavily on colour schemes, icons and visual cues as part of their visual identity. However, Singapore does not permit design protection for colours alone; colour must be used together with at least one other design feature, such as shape, configuration, pattern or ornament.

Protecting virtual designs in Singapore Virtual designs displayed on physical devices may be protected as designs applied to articles. An article includes manufactured products such as smartphones, tablets, smartwatches, televisions, display screens and other electronic devices. Accordingly, GUIs and other screen-based interfaces may be registered by depicting the interface as applied to a physical display or device. This remains the most common pathway for GUI protection in Singapore.

Protecting virtual designs in Singapore Singapore also permits the registration of designs applied to non-physical products. A non-physical product is anything that does not have a physical form, is produced by the projection of a design onto a surface or into a medium (including air), and possesses an intrinsic utilitarian function beyond merely portraying an appearance or conveying information. The commonly cited example in the guidelines of the Intellectual Property Office of Singapore (IPOS) is a projected virtual keyboard that can be used for typing in substantially the same manner as a physical keyboard. By contrast, a projected image that merely depicts an object without performing any practical function would not qualify.

Protecting virtual designs in Singapore This distinction is particularly important for emerging technologies such as augmented reality, mixed reality and projected interfaces. Where a virtual interface performs a genuine functional role, protection may be available even though the interface is not tied to a conventional physical screen. Singapore also permits the same design to be registered in relation to both an article and a non-physical product where appropriate.

Protecting virtual designs in Singapore Virtual designs are subject to the same basic registrability requirements as other registered designs. The design must be new and must not have been registered or published anywhere in the world before the filing date. Singapore, however, provides a 12 month grace period for disclosures made by or with the consent of the designer or applicant. This may be particularly valuable for businesses developing GUIs, software interfaces and other virtual designs that publicly demonstrate products, conduct beta testing or launch software before filing a design application. Businesses should nevertheless exercise caution, as not all jurisdictions provide equivalent grace periods.

Protecting virtual designs in Singapore Singapore's regime also accommodates both static and dynamic GUIs. Animated interfaces may be represented through a sequence of images showing the various states or transitions of the GUI. This provides a practical mechanism for protecting modern interfaces whose visual appearance changes in response to user interaction.

Protecting virtual designs in Singapore Registration is based on a formalities examination process. IPOS examines compliance with filing requirements but does not generally conduct a substantive examination of novelty before registration. As a result, design registrations can usually be obtained relatively quickly. Registered designs remain vulnerable to subsequent challenge if, for example, the design was not in fact new at the filing date. Protection may be renewed up to a maximum term of 15 years from the filing date.

Protecting virtual designs in Singapore Singapore's legislative recognition of virtual designs provides significantly greater certainty than is available in many jurisdictions whose design laws continue to focus primarily on physical products. For businesses developing software-driven products, digital services, immersive technologies or projected interfaces, registered designs can form an important component of a broader intellectual property strategy alongside patents, trade marks and copyright. The availability of protection for both article-based and non-physical product designs reflects Singapore's efforts to adapt its design regime to an increasingly digital economy.

Protecting virtual designs in Malaysia Malaysian legislation does not expressly recognise virtual designs, does not provide for protection of colours as a distinct design feature, and does not establish a formal mechanism for the registration of partial designs. Although the Intellectual Property Corporation of Malaysia (MyIPO) has, in practice, accepted and registered graphical user interfaces (GUIs), icons and other screen-based visual features, such protection is founded on registry practice rather than explicit statutory recognition.

Protecting virtual designs in Malaysia Malaysia’s current industrial design legislation remains primarily focused on designs applied to physical articles. Section 3(1) of the Industrial Designs Act 1996 (IDA) defines an “industrial design” as features of shape, configuration, pattern or ornament applied to an article by an industrial process or means, which, in the finished article, appeal to and are judged by the eye. The Act also defines an “article” as an article of manufacture or handicraft, including a part of such an article where that part is made and sold separately. Malaysian design protection is subject to a global novelty requirement, meaning that the design must be new in Malaysia and elsewhere as at the relevant filing or priority date.

Protecting virtual designs in Malaysia Notably, the statutory definition of “industrial design” does not expressly identify colour as a registrable feature. This is particularly significant for virtual designs, where colour schemes, colour-coded icons and other visual cues often form an important part of a GUI's visual identity and user experience. A further limitation concerns dynamic or animated virtual designs. As the Act contains no specific provisions addressing animations or sequences of images, the dynamic nature of virtual designs may not be fully accommodated by conventional static representations.

Protecting virtual designs in Malaysia Regulation 7 of the Industrial Designs Regulations 1999 requires an application to indicate the relevant class under the Locarno Classification. In practice, applications for GUIs are generally structured so that the digital design is represented in connection with a physical display or electronic device. Applicants may rely on relevant Locarno classes, including Class 14-04 (Screen displays and icons) and, where appropriate, Class 32-01 (Graphic symbols and logos, graphic designs and ornamental designs for product decoration). Where a design is presented in relation to a physical device, broken or dotted lines may be used to indicate that the appearance of the device itself is not claimed, while the GUI is depicted in solid lines. This practice enables screen-based visual features to be accommodated within the existing statutory framework, notwithstanding the absence of express statutory recognition of virtual designs as a distinct category or a formal mechanism for registering partial designs.

Protecting virtual designs in Malaysia However, registration of a virtual design does not necessarily provide certainty as to the ultimate scope of protection. As registration is preceded by examination directed to compliance with formal requirements rather than substantive examination, this may become particularly relevant in enforcement proceedings, where questions could arise whether protection extends to a virtual design reproduced across different devices, displayed through software alone, or provided through a digital service without being tied to the physical article identified in the registration. Similar uncertainty may arise in relation to a potential “article at rest” argument, as recognised in Australian jurisprudence, under which software-generated visual features only when a product is switched on or in use may not form part of the appearance of the physical product when assessed in its inactive state. Ultimately, because the IDA does not expressly recognise virtual designs as a distinct category, the scope and enforceability of such protection may depend on how the statutory requirement of an “article” is interpreted and applied by the courts, an issue that has yet to be judicially tested in Malaysia.

Protecting virtual designs in Malaysia MyIPO has undertaken consultations on proposed amendments to the Industrial Designs Act 1996 and the accompanying Regulations, including Malaysia’s possible accession to the Hague Agreement Concerning the International Registration of Industrial Designs. The proposed reforms may broaden protection for digital and non-physical designs, including GUIs and dynamic designs. Separately, proposed amendments to the Copyright Act 1987 may further clarify the treatment of digital works and the copyright-industrial design boundary under section 7(5), which provides that copyright does not subsist in a registered industrial design. However, as at the date of this article, no legislation expressly recognising virtual designs, non-physical products or animated GUIs has been enacted. The current position of virtual designs in Malaysia therefore remains governed by the existing IDA and MyIPO’s registry practice.

Practical considerations Singapore and Malaysia both represent important markets for businesses developing GUIs, software interfaces and other virtual designs. However, the two jurisdictions currently adopt notably different approaches to protecting such subject matter. Singapore provides express statutory recognition of virtual designs and certain non-physical products, while protection in Malaysia is presently grounded primarily in the existing industrial design framework and MyIPO's registry practice.

Practical considerations Despite these differences, registered designs can play an important strategic role in both jurisdictions. In Singapore, registered designs may provide relatively clear protection for GUIs, projected interfaces and other virtual designs. In Malaysia, registrations may still offer commercial value notwithstanding the current legal uncertainties. Design registrations may help businesses strengthen broader intellectual property portfolios, create deterrent value, support licensing and commercial transactions, preserve options pending future legislative reforms, and complement other forms of protection such as patents, trade marks and copyright.

Practical considerations Businesses investing heavily in GUIs, software interfaces and other virtual designs should consider:

Practical considerations identifying the key markets in which virtual designs will be deployed, commercialised or enforced, and assessing the protection mechanisms available in those jurisdictions;

Practical considerations implementing a coordinated filing strategy that aligns protection efforts across Singapore, Malaysia and other relevant markets;

Practical considerations evaluating whether a virtual design may qualify for protection in Singapore as a design applied to an article, a non-physical product, or both;

Practical considerations carefully considering how GUIs and other virtual designs are represented in design applications, particularly where protection is sought for specific interface features rather than the surrounding device;

Practical considerations taking into account the differing treatment of colour, dynamic interfaces and non-physical products in the two jurisdictions;

Practical considerations considering the role of patents, trade marks and copyright alongside design rights as part of a layered intellectual property strategy;

Practical considerations reviewing product development, testing and launch timelines to ensure that filing strategies are aligned with commercial objectives and novelty requirements; and

Practical considerations monitoring legislative and policy developments, particularly in Malaysia, where reforms relating to digital designs, GUIs and Hague Agreement accession continue to be considered.

Practical considerations As the other articles in this series demonstrate, the treatment of virtual designs varies significantly across jurisdictions. Understanding those differences is increasingly important for businesses seeking to maximise protection for valuable digital assets in an interconnected global market.

Practical considerations If you would like to discuss a protection strategy for GUIs and other virtual designs in Singapore, Malaysia or other key ASEAN markets, please contact our Singapore patents team.

Key contacts Maw Jiun Foo Maw Jiun Foo Senior Partner, SingaporeSingaporeD +65 6885 3750 Email me mawjiun.foo@dentons.com

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Key contacts mawjiun.foo@dentons.com

Key contacts Jian Ming Chang Jian Ming Chang Partner, SingaporeSingaporeD +65 6885 3767 Email me jianming.chang@dentons.com

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Key contacts jianming.chang@dentons.com

Key contacts Siew Ching Kow Siew Ching Kow Patent Attorney, SingaporeSingaporeD +65 6885 3845 Email me siewching.kow@dentons.com

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Key contacts siewching.kow@dentons.com

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