NDA for a product design or prototype

A product design or prototype is shared for design development, engineering, testing, certification, buyer feedback or a retailer's range review, with recipients who work on other products and, in a retailer's case, sell them. A non-disclosure agreement defines the design and the physical items that embody it, restricts what the recipient may do with them, records that the disclosure is confidential so that registered rights are not lost, and deals with the recipient's own contribution to the design. I review the NDA the recipient has offered, or draft one for the party disclosing, for a fixed fee of £495 in three working days.

Who this is for

Product businesses, designers, inventors and start-ups in England and Wales sharing a design, a prototype, a sample or a mock-up with an industrial designer, an engineering consultancy, a test laboratory, a certification body, a potential distribution partner or a retail buyer, before a development, supply or manufacturing agreement exists. Both parties contract as businesses; an individual inventor may contract personally.

What matters in an NDA for a product design or prototype

The design and the material that carries it

The definition should cover the design in every form: drawings, CAD files, renders, specifications, materials and finishes, the prototype and any samples, photographs and video of them, test results, and the commercial plan for the product. It should extend to information the recipient derives from examining the prototype. Copyright in the drawings belongs to the disclosing party under section 11 of the Copyright, Designs and Patents Act 1988, and unregistered design right in the shape and configuration under section 213 where the design qualifies, and the NDA should record that no licence is granted.

Physical prototypes: custody, handling and return

A prototype can be photographed, measured, disassembled and copied, so the NDA should provide that it remains the disclosing party's property, that the recipient holds it as bailee, keeps it secure and away from others, does not disassemble or reverse engineer it beyond what the agreed purpose requires, does not photograph it except as agreed, and returns it on request in the condition received. The review adds a record of what was delivered and when, so that the return can be checked.

Testing, certification and the data produced

Where the recipient tests the product, the test data, reports and any failure analysis are the disclosing party's confidential information, and the NDA should say so, together with the recipient's obligation not to use the results for another client's product. Where the recipient is a certification body, its own rules may require it to retain records and to report certain results to regulators, and the NDA should accommodate those obligations expressly rather than leave the recipient in breach of one or the other.

The recipient's contribution to the design

A designer, engineer or retailer that comments on the design contributes to it, and without an agreement the contributor may own rights in what it adds. The NDA should say that improvements and suggestions made by the recipient in the course of the evaluation belong to the disclosing party, or are licensed to it without charge, with an assignment in writing under section 90 of the Copyright, Designs and Patents Act 1988 where the recipient will agree, and that the recipient's contribution gives it no right to use the design. Where the recipient is a design consultancy that will be engaged to develop the design, the review notes that the assignment belongs in the design agreement.

Registered rights and the effect of disclosure

Registration of a design under the Registered Designs Act 1949 depends on the design being new, and a disclosure to the public before the application can defeat that, subject to the grace period the Act allows for the designer's own disclosures. A disclosure made in confidence under an NDA is not a disclosure to the public. Where the product may be patentable, disclosure without an NDA can affect the ability to obtain a patent, and that is a matter for a patent attorney regulated by IPReg before the design is shown to anyone; the NDA deals with the contractual position.

Retail buyers, range reviews and the end of the discussion

A retail buyer shown a prototype for a range review sees a product it could source elsewhere, and the NDA should prohibit the retailer using the design, the specification or the disclosing party's supplier details to have a similar product made, for a period after the discussion ends. The obligations should last for as long as the design remains confidential, the standard the Trade Secrets (Enforcement, etc.) Regulations 2018 apply, with return of the prototype and destruction of copies at the end, and the NDA should acknowledge that damages may be an inadequate remedy so that an injunction can be sought against a copy reaching the market.

What it costs

NDA review or drafting, £495. Three working days.

Buying online forms the engagement on payment. The scope is what the contract review page describes, you accept the Terms of Service at checkout, and I email you within four working hours to get started. If you would rather ask something first, email me.

What you get

• Your own contract returned with my amendments as tracked changes, plus a clean version with every change accepted, ready to send to the other side
• Comments in the document where a point needs explaining
• A written explanation of what I have changed and why, by email or as an attachment if it is lengthy, marking the points I would hold firm on and the ones that are negotiable
• A view on what is normal market practice and what is the other side pushing their luck
• One round of follow-up questions by email, included

What is not included

• Negotiating directly with the other side, which I quote separately once I know who is on the other side. Where the other side is willing to share a live document, I can work in that document directly
• Drafting a replacement contract from scratch
• Advice on the law of any jurisdiction other than England and Wales
• Tax, accounting or regulatory advice
• Disputes about a contract that is already signed

Questions I am often asked

We want to show a prototype to a retail buyer. Will they sign an NDA?

Large retailers have their own forms and may decline a supplier's; smaller retailers sign. The review reads the retailer's form for what it gives you, or drafts a short NDA a buyer will accept, and advises on what to show and what to hold back if no NDA is signed.

The design consultancy will improve our design. Who owns the improvements?

Without an agreement, the consultancy may own what it adds. The NDA should provide that improvements made in the evaluation belong to you or are licensed to you, and the design agreement that follows should carry a full assignment. The review drafts the NDA provision and flags the assignment for the agreement.

Does showing the prototype under an NDA affect our ability to register the design?

A disclosure in confidence under an NDA is not a disclosure to the public, so it does not defeat novelty for a registered design. The review records the confidentiality of the disclosure in the NDA and, where the product may be patentable, points you to a patent attorney before any disclosure.

Related guidance and services

• Contract review, £495, the service this page describes
• Terms and conditions drafting, £995
• NDA before sharing an idea with a manufacturer
• Reviewing a licence agreement for your product or brand

This page is general guidance for businesses in England and Wales, not advice on your own circumstances. Last reviewed: September 2026. Email geoffrey@caesar.co.uk.