Design & Copyright
UK UNREGISTERED DESIGN RIGHT
Design Right protection attaches to the shape and configuration as applied to an article and does not involve any formal application procedure. This form of protection comes into being upon creation of a design document or article embodying the design and a design that is considered original insofar as it is not common place in the design field in question can qualify for design right protection. However, unlike registered design protection, design right is not an absolute form of protection in that, in order to successfully pursue an alleged infringer, it is necessary to show that the features of the design in question were copied whereas with a design protected by design registration, it is merely a matter of considering the similarities between the design irrespective of whether the alleged infringing design might have been created quite independently from reference to the alleged infringed article.
Design right expires 15 years from the year in which the design was first recorded in a design document, or an article was first made to the design, whichever occurs earlier. Further, if the article is commercially exploited within the first 5 years of that period, the duration is then set at 10 years from the first commercial exploitation. In effect, the period is therefore normally 10 years from the first marketing by the design owner or with that owner's consent.
Design right protection is only available for so-called qualifying individuals and the main criterion relates to the geographical residence or nationality of the party claiming design right protection. If any queries arise in relation to this matter, or indeed in relation to the exact features of an article for which you might be interested in claiming design right please do not hesitate to contact us so that we can advise further on the nature of any protection that might be available under the design right provisions of the Copyright, Designs and Patent Act 1988.
An important limitation concerning design right is that licenses are available as of right for any person to manufacture an article protected by design right during the final 5 years of protection.