An introduction to design rights
In this continuing series of blogs on IP, this blog focusses on the concept of design right.
What is a Design Right?
Design rights protect a product’s visual appearance – this can be for the whole or part of a product and can entail colours, shapes of products and their packaging, decorative patterns and ornamentation, and texture or materials of the product itself.
There are two categories of design rights, registered and unregistered.
Examples of registered design rights include: the shape of coffee jars, toy cars, crocs shoes, a piece of furniture, computer game characters, and surface patterns on products.
Registered design right protects the external visual appearance of all, or part of a product. The owner of a registered design is provided with an exclusive right, for a limited period, to make, use or sell any article that the design is applied to. It also serves to deter a potential infringement and gives the holder a right to take legal action against those who might be infringing the design.
In order to register a design in the UK, a copy of the design, and details of the owner of the design, must be recorded at the IPO. In order to be registered, the design must be:
- Novel – it must be different from earlier designs
- Possess individual character – it must not be too similar to any registered designs which are already on the market
- Not be determined by the product’s functionality
The registration affords protection of up to 25 years from initial registration (an initial five-year period, renewable in subsequent five-year periods).
Unregistered designs arise automatically and protect any part of a shape or configuration of the whole or part of an article (but excluding 2D surface patterns in the UK). The right lasts for 15 years from the end of the calendar year in which the design was first created, or 10 years from being made available for sale or hire, whichever is the earliest.
If an unregistered design right is infringed, the burden of proof is on the owner to show that intentional copying has occurred. Bringing a successful action against an infringer of an unregistered design right can be very difficult. Therefore it is advisable for owners to have their design registered or at a minimum, keep dated records and notes from when the design was first created.
As with other forms of intellectual property, you can licence or sell design rights to third parties.
Should you need assistance with any design right issues, then please contact Rina Sond.
Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.