designs law

designs law

The legal regime is complicated, because design protection is available under the UK laws of registered or unregistered designs, under European Community Designs Law (registered or unregistered) or, under certain circumstances, under COPYRIGHT law. These areas overlap considerably, but do not coincide. Under (UK and EU) registered designs law (Registered Designs Act 1949, as amended), protection is given to a design for a product (any industrial or also handicraft item, but not a computer program). A design is defined as the appearance of the whole or parts of the product resulting from the features of the lines, colours, shape, texture etc. These features must be visibly noticeable to consumers, but they do not have to fulfil any higher aesthetic standard. For registrability, the design:

1. (1) must be new, that is, no (materially) identical design must have been made available to the public before the date of application for registration;
2. (2) it must have individual character, that is, whether the overall impression of the design in question in the eye of the beholder is different from the overall impression of any prior design. Design protection cannot subsist in design features which are solely dictated by the technical function of the product. Registered design rights are obtained on registration with the UK Patent Office or with the Office for Harmonization of the Internal Market (Alicante) and last for a maximum of 25 years from the date of the design registration (5 initial years plus 4 x 5 renewable periods). The owner of the design right (and the claimant in an infringement action) is the designer, but in the case of an employee designer-ownership vests in the designer's employer. The registered design right in designs commissioned for money belongs to the commissioner.

Unregistered designs are protected in the UK under the Copyright, Designs and Patents Act 1988, Part III (ss. 213 et seq.); besides this right, there is also the European Community Unregistered Design Right, but it is thought that the (older) UK law on unregistered designs covers this area of EU design protection sufficiently. Under UK law, unregistered design right protection of any design, defined as any aspect of the shape or configuration of an article (provided it is not surface decoration), arises automatically. However, there is no protection for methods or principles of construction, for designs which are commonplace in the design field in question, and for designs which are not original, that is, they have been copied from a pre-existing design. In addition, there is no protection for a shape or configuration which has been designed in a certain way because the article must fit with another article to perform its function (‘must fit’ exception, e.g. light bulb sockets), or because the article must go with the design of the other article (‘must match’ exception, e.g. car door panels). The owner of the unregistered design right is the designer, unless the design has been created in the course of employment or commissioned for money, in which cases the same ownership rules as for registered designs apply. The unregistered design right lasts for 15 years from the first recording of the design document or the first making of an article to the design, or for 10 years from the first marketing of the design article.

A design can also be protected as an artistic work (sculpture etc.) or as a work of artistic craftsmanship under COPYRIGHT law. If the article in question is protected by copyright, then no (concurrent) unregistered design right protection is available.