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Design Rights

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Design rights protect the shape and configuration of the whole or part of an object and how different parts of a design are arranged together, provided that the design is new and of individual character. Design rights seek to prevent others from copying the appearance of a design. The value of design rights should not be underestimated, and business owners should consider protecting designs which are valuable and unique.

Design rights, patentability, trade marks and copyright may co-exist in different aspects of the same product, so it is important to consider protecting all applicable intellectual property rights, particularly at the outset of a new venture.

Unregistered design rights may arise automatically under the Copyright, Designs and Patents Act 1988; however in order to benefit from a wider degree of protection, it is also advisable to consider registering your designs under the Registered Designs Act 1949.

Design Rights in the UK

Unregistered Designs

Three-dimensional shapes are automatically protected as an unregistered design right for 15 years from the end of the year in which the design was first created or an article was made to that design (whichever is earlier), or 10 years from the end of the year in which articles made to the design were first made available for sale or hire, anywhere in the world. In the final five years of the protection period, any party is entitled to ask for, and be granted, a licence to use the design.

Primary infringement of unregistered design rights consists of making articles to the design or making a design document for the purpose of enabling such articles to be made.

Registered Designs

On the other hand, a registered design gives the owner exclusive rights in the design. Once registered, can then be every 5 years, up to a total of 25 years. If a design is not renewed, it will lapse.

The owner of a registered design right does not need to prove intentional copying when taking infringement action against third parties, and rights can be enforced even where the third party did not know about the design except in some defined circumstances, for example the use was for teaching purposes. This is because following a registered design application, the design will be published in a public register, and this is deemed to give members of the public notice that a design owner owns the monopoly right over such design.

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Registered and unregistered design rights permit an owner to distinguish their product, and consequently their brand, from competitors, and having appropriate registrations and licensing arrangements in place prevents the likelihood of third parties copying your designs, which often go to the heart of a product. Successfully protecting and exploiting your designs is key to developing a reputable brand, a unique selling point, and a healthy intellectual property portfolio where rights are adequately protected.

Our specialist intellectual property solicitors can assist in protecting your designs through registration, resolving disputes relating to registered or unregistered design rights and in providing advice in respect of exploiting existing design rights to your financial and commercial advantage.

If you require further information on any aspect of design rights, please contact our specialist intellectual property solicitors at Forbes Solicitors.

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FAQs

What are the benefits of registering a design?
 
 

Ultimately, registered designs enable the ownership of exclusive rights to manufacture and sell the design. The infringement of a design right occurs when a design is reproduced by a third party without necessary consent.

With unregistered protection, a design right holder will need to prove that their design has been copied for a claim to succeed. However, by registering a design, the design right holder has a monopoly right in that design meaning that a third party cannot knowingly or unknowingly produce goods that incorporate elements of the registered design. Accordingly, to establish infringement in a registered design, a high level of similarity is required, rather than intentional copying, which is a higher threshold.

A further benefit of obtaining a registered design is that the exclusive rights can be licensed, assigned, or sold to others, and this can be financially beneficial.

What can a design right cover?
 
 

Design rights protect the aesthetic appearance of either the whole or part of a product or surface pattern. Design rights can include: decorative patterns, graphic icons and symbols, the lines, contours and shape of products and the packaging of products. To qualify for design right protection, the overall impression of the new design must be different from any pre-existing design and therefore must be of any individual character.

What is the process for registering a UK design?
 
 

To obtain a UK registered design, an application must be filed at the UK Intellectual Property Office. The pivotal part of the application will be the illustrations which show the features of the design. The illustration must show the design as it appears to the eye, using photographs, line drawings, computer-aided design or rendered computer-aided design.

The Intellectual Property Office will examine the application within 2 weeks and if there are no objections, the design will be registered immediately. If there are any objections, these must be responded to within 2 months before the application is surrendered.

How much does it cost to register a UK design?
 
 

The applicable UK Intellectual Property Office application fees depend on the number of designs included within the application, though of note, one design will cost £50, up to 10 designs will cost £70 and up to 20 designs will cost £90.

In addition to the fees charged by the UK Intellectual Property Office referred to here, our intellectual property solicitors act on a competitive fixed fee basis. Please contact us by clicking here to discuss your requirements further with one of our intellectual property solicitors and for a no obligation quotation.

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