A recent fight between two munitions manufacturers raised the issue of whether the shape of a warhead was protected as a design.

Unregistered UK design right exists in the design of any aspect of the shape or configuration (internal or external) of the whole or part of an article provided that the design is original. A design is not original if it is commonplace in the design field in question at the time of its creation.

The designs that were alleged to be infringed in this case related to the design of “shaped charge warheads” (which are warheads designed to pierce armour, such as tank armour, and then cause a second explosion within the pierced object). The defendant sought to argue that the design for the warheads was not protected by design right since it was commonplace.

The judge noted that the term “commonplace” is not defined in the relevant legislation and should therefore be given its ordinary meaning: namely, with respect to an object, one which, albeit in its own design field (here the very specialised design field of shaped charge warheads) is an ordinary everyday object, having nothing out of the common, an object devoid of originality or novelty.

Whilst the use of a conical liner in a shaped charge was not unusual, the judge noted that small variations in shape, internal and external, can make a large difference to the charge’s performance. As regards the particular shaped charge design over which the parties were fighting, the judge decided that the shape of the conical liner must have been uncommon since the performance of the charge was unmatched by any other warheads. On this basis the judge held that the design of the shaped charge was not commonplace and was therefore protected by design right.