There are two main forms of protection available for designs namely, unregistered design rights and registered designs.
The main distinction between the two is that an unregistered design right is a right, which comes into existence without having to undergo a formal registration process, where as a registered design right is a right conferred by the Registered Designs Act 1949 and come into effect only after registration is sought.
Unregistered design rights provide the automatic protection of the internal or external shape or configuration of an original design created by a designer.
The rights afforded to the holder include the right to reproduce the design for commercial purposes by either creating a product from the design or maintaining a record of the design for the purposes of allowing it to be made at a later stage by either the designer himself or by another, provided consent is obtained from the holder of the rights.
A holder of a design right is entitled to prevent anyone from copying the shape or configuration of the product. Unregistered design rights apply to three-dimensional aspects of the design, excluding surface ornamentation and do not cover two-dimensional aspects such as patterns.
Unregistered design rights are limited to protection within the UK only and are enforceable for only 10 years after the article was first marketed or 15 years after the article was created. Infringement of an unregistered right occurs where anyone copies the design directly or indirectly without the consent of the owner, in order to produce a design identical or similar to the design or intentionally reproducing copies of the design for commercial purposes.
A registered design right is a monopoly right conferring on the owner a protection for the appearance of the partial or whole part of the design and includes protection of the lines, contours, colours, shape, texture or materials of the product or its ornamentation. Unlike unregistered design rights, the holder of such a right is afforded protection for both three- dimensional and two- dimensional aspects of the design. In order to obtain such a right, registration must be made to the Intellectual Property Office.
An application for this type of design protection can be made for either UK or Community registration and will last up to a total of 25 years with the option of renewal every 5 years. Infringement of an owner’s right occurs whether or not there has been copying of the design, with the onus resting on the third party to prove they have not infringed the owner’s rights.