CDPA 1988 Section 265

CDPA 1988 Section 265

17 May 2009

The Copyright Designs and Patents Act 1988 (‘CDPA88’)amongst else replaces the regime for registration of designs that existed under the Registered Designs Act 1949.

In the terms of the CDPA88 under section 269, design is defined to mean features of shape, configuration, pattern or ornament applied to an article by any industrial process, being features which in the finished article appeal to and are judged by the eye. This commonly termed the necessity for a design to have ‘eye-appeal’ if it is to be registered.

It is not possible to register:

(a) a method or principle of construction or

(b) features of shape or configuration of an article which-

(i) are dictated solely by the function which the article has to perform, or

(ii) are dependent upon the appearance of another article of which the article is intended by the author of the design to form an integral part.

In short this prevents interference with the patent regime, and precludes the registration of designs which consist of features or configurations which are unavoidable. This stipulation is known as the ‘must-fit must-match’ exceptions to design registerability.

Exceptions to registerability are further detailed in subsection (3). A design shall not be registered in respect of an article if the appearance of the article is not material, that is, if aesthetic considerations are not normally taken into account to a material extent by persons acquiring or using articles of that description, and would not be so taken into account if the design were to be applied to the article.

This agrees with the necessity for eye-appeal, but goes further to prevents the registration of designs that are as it were irrelevant. This could be seen to avoid intereference with trade mark law and/or prevent the registration of spurious rights. That said, remember you can register a design showing the ornamentation alone e.g. a pattern to go on a product or a stylised logo.

Furthermore designs are not registerable if the same as others registered or published in the before the date of the application or if it differs from such a design only in immaterial details or in features which are variants commonly used in the trade.

Designs are divided up in to classes based on what goods they will be applied to.

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