Design protection safeguards the visual appearance of a product or part of a product. The visual appearance is made up of several features such as shape, contour, configuration, texture, material and colour. There are two ways of protecting a design: registered and unregistered design rights in the UK and EU. In most cases the creator of the design owns the design rights in the product, except where the work was commissioned or created during the course of employment, in which case the rights belong to the commissioner or the employer.
Registered Design Right
Registered design rights can protect both 3D and 2D designs. It is a monopoly right which gives the designer the exclusive right to make products that incorporate the design.
The designer has 12 months from the date he discloses the design to the public in which to file his application for the registered design.
In order to qualify for a registered design, the design must be new, have individual character and the appearance of the product must not be dictated by its technical function. In order to be ‘new’, an identical or very similar design must not have been disclosed anywhere in the world prior to the application to register the design right. In order for the design to have ‘individual character’, it must give a different overall impression from all previous designs.
The design right gives the designer the exclusive right to produce, for commercial use, articles to the design and design documents recording the design to enable such articles to be made. The right also prevents copying of the design by third parties.
Registered design rights can last for 25 years.
Unregistered Design Right
Unregistered design rights protect the appearance of a functional product. The design right gives the designer the exclusive right to produce, for commercial use, articles to the design and design documents recording the design to enable such articles to be made. The right also prevents copying of the design by third parties.
Unregistered design rights arise automatically. To be protected by design right, a design must comprise an aspect of shape or configuration (whether internal or external) of the whole or part of an article, be original and not commonplace, be recorded in a design document or be the subject of an article made to the design and be created by a qualifying person (this definition includes UK and EU nationals).
Unregistered design rights can last for the lesser of either 10 years from when the product was first made available to the public for sale/hire or 15 years from when the design was first recorded in a design document or an article was first made to the design. Third parties are granted a licence of right during the last 5 years of the term which allows them to lawfully use the design in a way that would have otherwise infringed the right previously.