In the lead up to World IP Day on 26 April, each day this week we are looking at a different type of intellectual property as a reminder of ways in which these rights can be protected. Today we look at designs. Designs relate to the way that a product looks. A good design can turn a product into a brand in its own right. It is important for businesses to understand the different forms of protection that exist. In the UK and Europe, this form of intellectual property is protected by unregistered “design rights” and registered designs.
An unregistered design right provides protection for the 3D shape of an original design against those who have copied the design. There is protection for unregistered designs at both UK and European level. In the UK this protection lasts for the earlier of 15 years after creation or 10 years marketing a product using the design. In contrast protection at European level only lasts for 3 years, however allows the owner to seek pan-European relief if the design is infringed.
When a design is registered at UK or European level the applicant acquires exclusive rights in the design for up to 25 years. In contrast to an unregistered design right, which only protects against copying, the owner is granted a monopoly over the design and this protection extends to designs that have been created independently. This is an important distinction because it means that the owner does not have to show that the design has been copied. Registration extends to 2D features and so surface patterns can also be given protection.
The law in the UK relation to designs is currently under review. The Hargreaves Review identified ten key recommendations in relation to the reform of intellectual property in the UK, and included a review of the design industry. In January this year the government, through the UK IPO, published a summary of the responses received to its consultation on proposed reform and can be found here.
The summary highlighted that those who responded to the consultation were broadly in favour of the government’s proposal to retain the unregistered design right. It was recognised that this provides protection where the unregistered Community design right may not, particularly as the European right only lasts for three years.
The government consultation also proposed the introduction of criminal sanctions for the deliberate copying of a design. The summary noted that a majority of respondents were in favour of sanctions for registered design rights. There was a mixed response to criminal sanctions for unregistered design rights. Whilst there was general support for this proposal, respondents identified a number of concerns. These included how far the sanctions should extend, and whether it would be possible for Trading Standards to effectively enforce them.
The consultation by the government has proposed a number of areas of reform, however it remains to be seen which proposals will ultimately find their way into legislation.