Design Rights

There are important and specific differences between design right and registered designs.

Legislation

Design right exists under section 213 of the Copyright Designs and Patents Act 1988 (“the Act”). The Act states:

(1)  Design right is a property right which subsists in accordance with this Part in an original design.

(2)  In this Part “design” means the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article.

(3)  Design right does not subsist in—

(a)  a method or principle of construction,

(b)  features of shape or configuration of an article which—

(i)  enable the article to be connected to, or placed in, around or against, another article so that either article may perform its function, or

(ii)  are dependent upon the appearance of another article of which the article is intended by the designer to form an integral part, or

(c)  surface decoration.

What does this mean? Design right gives the owner automatic protection for the internal or external three-dimensional shape of a design. Design right allows the owner to prevent individuals or organisations from copying the shape or configuration of the article, however it does not give the owner protection for any of the 2-dimensional aspects, such as surface patterns for example (although these may be protected by copyright).

An owner of design right in a design has the exclusive right to reproduce the design for commercial purposes. Anyone who produces designs substantially the same as the your design is likely to have infringed your design right and so court action could be brought against them.

Design rights protection will last either 10 years after the first marketing of items that use the design, or 15 years after creation of the design – whichever is earlier. For the last 5 years of that period the design is subject to what is called licence right. This means that potentially anyone is entitled to a licence to make and sell products copying the design.

As with many unregistered intellectual property rights, it is often more difficult to prove infringement of an unregistered design right than with a registered design. This is because the claimant must be able to prove that the unregistered design was actually copied, or at least that the potential for copying existed.

As you can see, this is only a brief introduction to what is a complicated area of law, but if you have any further questions you should contact the intellectual property solicitors at Ironmonger Curtis with Bell & Buxton in Sheffield.