Design is all about the way an object looks: its shape, its visual appeal. A design right protects the design from copying. In the United Kingdom designs are protected in two main ways: unregistered designs and registered designs.
The creator of the design is usually the first owner of the intellectual property in a design. Design right automatically protects a design for ten years after the design was first sold or fifteen years after it was created - whichever is earliest. The UK law is now (post Intellectual Property Act 2014 amendments to the CDPA) that in the absence of a contract to the contrary, where a design has been commissioned, the designer will be the initial owner of the design, and not the person who commissioned it.
Two forms of unregistered design right exist covering the UK.
The first covers the UK only, the second is the so-called community unregistered design right, covering the whole of the European Union (EU). The two forms of design right co-exist, although are not identical.
- In essence, the UK design right protects original, non-commonplace designs of the shape or configuration of products and can last fifteen years
- Community design right gives protection against deliberate copying of designs for up to three years
UK design right
Unregistered design right gives automatic protection for the internal or external shape or configuration of an original design and does not involve any formal application procedure. It allows the rights holder to stop anyone from copying the shape or configuration of a product, but does not give protection for any of the two-dimensional aspects, for example patterns. Design right is free protection for 3D shapes only. Two-dimensional designs can be protected using copyright or registered designs.
UK design right lasts either ten years after the first marketing of products that use the design or fifteen years after creation of the design, whichever is earlier. For the first five years anyone can be stopped from copying the design. For the rest of the time 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 is like copyright in that the protection arises automatically when the design is created. Unlike copyright, design right is effective only in the United Kingdom.
Community design right
An unregistered community design does not require an application procedure as the right arises automatically upon creation. As with UK unregistered design right, unregistered community design protection arises for the shape and configuration as applied to a product. However, the community version also provides protection for the appearance of a product/article resulting from the lines, colours, texture and/or materials and/or from ornamentation and surface decoration of a product.
Designs can be protected in the UK by registering them by application to the UK Designs Registry. The design must be new and have 'individual character' in that the design must produce a different overall impression from earlier designs. As with patent protection, the novelty requirement is absolute.
A registered design gives the owner a monopoly right in the design. This means that third parties cannot produce products which incorporate the registered design regardless of whether they knew about or copied the design. The protection extends to the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture, materials of the product or its ornamentation.
Designs can also be registered in foreign countries and across the whole of the EU via a so-called 'community design'. A design application must be filed, in the UK or through the community design system, within twelve months of the first marketing of a product to the design. This registered right gives monopoly protection to original designs for up to twenty five years.