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END OF THE BREXIT TRANSITION PERIOD – WHAT HAPPENS TO UNREGISTERED COMMUNITY DESIGNS?

END OF THE BREXIT TRANSITION PERIOD – WHAT HAPPENS TO UNREGISTERED COMMUNITY DESIGNS?

16/12/20

Unregistered Community Designs (UCDs) have been heavily relied upon in the fashion industry and in other industries where design protection is only required for up to three years. While offering a shorter lifetime that their counterpart UK Unregistered Design Rights, they exhibit benefits in setting a less restrictive qualifying criteria, and a broader scope of protection insofar as they can protect features of surface pattern and decoration.

With the end of the Brexit transition period, UCDs will cease to be valid in the UK.

To compensate for this, the UK is to introduce comparable rights as follows:

UCD existing as of the end of the transition period

Designs that are protected in the UK as a UCD as of 31 December 2020 will be protected as a UK Continuing Unregistered Design (CUD)  which will be automatically established on 1 January 2021. A CUD will be valid in the UK for the remainder of the three years attached to the UCD.

Unregistered designs after the end of the transition period

After 1 January 2021, a new form of unregistered design protection will come into effect: the Supplementary Unregistered Design (SUD), which will provide in the UK a protection which is similar to the UCD, without extending to the EU.

However, the new SUD presents a thorny issue in relation to disclosure: the SUD is based on first disclosure in the UK, thus disclosure elsewhere, including in the EU, may destroy novelty. On the other hand, a UCD is based on first disclosure in the EU and after 1 January 2021 novelty may be destroyed by disclosure in the UK. Unless they are willing to rely on the untested concept of ‘simultaneous disclosure’ as discussed further below,  businesses will face a choice: having a SUD or a UCD, as they may not be able to have both.

However, the impact of the changes brought by Brexit can be mitigated in at least two ways:

  1. Filing applications for registered designs in the UK and EU. This option of course has its cost, but in the case of UK registered designs, official fees are very cheap

 

  1. Simultaneous disclosure in the UK and the EU. This can be achieved by disclosure on a website accessible from the UK and the EU. Another example is closed disclosure to relevant persons in the UK and EU by way of a webinar or a document. While simultaneous disclosure seems a relatively easy solution, it has not yet been tested in the courts and there is therefore no guarantee that courts in the UK and the EU will accept it.

Our design practitioners would be delighted to discuss the impact of these changes with you. If you feel it is relevant to your business, or if you have any design queries, please do not hesitate to contact us.