There are two related right types that can provide protection to designs - registered designs and unregistered design right (UDR).
On 9 December 2001 a new law on Registered Designs came into force to bring UK law into line with that of Europe.
A design registration can cover features of the lines, contours, colours, shape, texture or materials of a product or of its ornamentation. In addition, the appearance of the whole or just a part of a product may be protected by registration. A component part of a complex product may be protected if visible in normal use. Although as part of the application process it is necessary to state to which product the design is intended to be applied, protection is conferred on the design itself rather than on the article. The product may be a handicraft item as well as an industrial item, or could be a graphic symbol such as a computer icon. There is no longer any requirement for the design to "appeal to the eye".
A design must differ in more than immaterial details from designs made available to the public anywhere in the world at the time of filing of the design registration; however, "obscure" prior art is not considered novelty-destroying.The other criterion that must be met for design registration is that of "individual character". This is defined such that a design must form a different "overall impression on the informed user", taking into account the degree of freedom of the designer and similar reasoning will be used to decide cases of infringement.
An important point to note is that if the design has already been made available to the public, all is not necessarily lost as there is a 12 month grace period for disclosures made by the designer. This will allow designers to assess market potential before undertaking the expense of a design registration. Please be aware however that not all countries offer such a grace period and we recommend filing for registration before disclosure.
Unregistered Design Right
As the name suggests, there is no need to register this right, and indeed, no register exists. Rather, the right arises automatically on creation of the design, in much the same manner as copyright arises on creation of an artistic work. As with copyright, unregistered design right (UDR) is infringed only when a design is copied; independent creation of a design does not infringe.
In common with registered designs, UDR protects the appearance of articles, and does not protect methods or principles of construction. The "must fit" exclusion also applies. However, there are a number of important differences between UDR and registered designs.
The principal difference is that UDR protects functional designs (as well as aesthetic designs). Thus an industrial article, the design of which does not have any "eye appeal", might well attract UDR. Secondly, UDR does not protect features of shape or configuration which enable the article to be connected to or placed in, around or against another article so that either article may perform its function (the "must match" exclusion). Neither does UDR protect surface decoration.
The provisions of UDR are complex and we would be happy to advise further in relation to specific enquiries.