Designs

What is design protection?

Design protection covers the outward appearance of the whole or part of a product, including decoration, lines, contours, colours, shape, texture and materials. In the United Kingdom designs are in fact protected by three legal rights;

 

Registered designs

Registered designs protect ‘industrial’ designs. An industrial design is the ornamental or aesthetic aspect of an article. The design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or colour. These ‘eye appeal’ aspects of goods can create great commercial value for their owners, making them more marketable over similar goods without this aesthetic aspect. To be registrable, however, the design must be new and have what is termed ‘individual character’, i.e. the overall impression of the design on an ‘informed user’ must be different from that of previous designs. In other words, it has to pass the ‘déjà vu’ test.

Industrial designs are applied to a wide variety of products of industry and handicraft:, including technical and medical instruments, luxury items such as jewellery, household goods, shoes and bags, textile designs , vehicles and buildings. However, this right excludes those elements whose appearance is determined by their function.

Registered designs give you the right to stop any unauthorised person from copying or using that same design in the United Kingdom for up to 25 years. The registration needs to be renewed every five years. The registration process can be surprisingly quick and inexpensive compared to other registered rights, but can be also very effective against competitors.

 

Design right

Design right (also known as ‘unregistered design right) is an automatic right that you get when you create an original ‘artistic’ design, whether in document or recorded form or as a model embodying the design. In the UK it covers 3-D aspects of an item; it does not apply to 2-dimensional surface decoration or patterns nor to ‘industrial’ designs which have their own rights (which could be registered design or/and copyright). If a design is artistic and there is no intention to mass produce it, it will receive automatic copyright protection against illegal copying. Copyright also protects any drawings or plans of the design.

Design right, which gives you the right to stop anyone copying your design, lasts either 10 years after the first marketing of products that use the design or 15 years after creation of the design, whichever is earlier. However, after the first five years the design is subject to a license of right. This means that anyone is entitled to a licence to make and sell products copying the design. Design right can be a powerful deterrent since it applies equally to parts of designs as to the whole appearance as well as to hidden or internal parts of a product (unlike with registered designs).

 

Community Design right

In parallel to the UK system, the EU also has registered and unregistered design rights:

 

Registered Community Design (RCD)

RCD offers similar protection to that of the UK registered design throughout all the EU member states (27 on writing). Applications are processed by OHIM. Once granted, protection is renewable each five years up to a maximum period of 25 years.

 

Unregistered Community Design

Similar to British law, there is an automatic right recognised by the EU for all EU countries, including the UK, which runs in parallel to UK Design Right. Unregistered Community design offers protection from copying the design on any item . Protection lasts three years after the design has been made available to the public.

Regarding designs in general, where a new design departs quite radically from previous designs, a wider scope of protection can be expected than if it is but an incremental improvement in what is a crowded area of design. But even incremental design improvements can make the difference between a successful and profitable business and one that is not.

If a design is valuable to a business, it is worth considering a design registration rather than relying on unregistered design rights alone since the latter can be more difficult to prove and to enforce.