UK Unregistered Design Right
Unregistered Design Right protection attaches to the shape and configuration of an article and does not involve any formal application procedure. This form of protection is generated upon creation of a design document or article embodying the design. A design that is considered original insofar as it is not commonplace in the design field in question can qualify for design right to protection. However, unlike registered design protection, design right is not an absolute form of protection. That is, in order to successfully pursue an alleged infringer, it is necessary to show that the features of the design in question were copied. For a design protected by design registration however, it is merely a matter of considering the similarities between the designs irrespective of whether the alleged infringing design might have been created quite independently from reference to the alleged infringed design.
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. However, if the article is commercially exploited within the first five years of that period, the duration is then set at 10 years from the first commercial exploitation. In effect, for a commercial design, the period is therefore normally 10 years from the first marketing by the design owner or with at owner’s consent. However, a limitation exists in that licences are available as of right for any person to manufacture an article protected by the design during the final 5 years of protection.
Design right protection is only available for 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 such protection that might be available.
Post Brexit two new forms of Unregistered Design protection will be avaialble, both of which will mirror the scope and term of protection available in the UK pre-Brexit via Unregistered Community Designs (UCD).
Continuing Unregistered Deisgn (CUD) protection will be available for UCD in existence at 1 January 2021, and for the remainder of the three-year term.
Supplementary Unregistered Design (SUD) protection will be avaialbe for designs created after 31 December 2020.
Both CUD and SUD can be avaialable in tandem in the UK with any Unregistered Design Right as discussed above.