How to your protect design right

Design registration is not required. However the right does not subsist until the design has been recorded in a design document or an article has been made to the design.

If you are a designer you should sign and date the design documents and records should be kept of the design document and importantly the design process. It is essential that the date of the first marketing of the articles be recorded. If an infringement action is to take place the first dates will be required to prove the date from which the right runs and subsists.

We are often asked as to the connection or similarities with copyright, registered designs and design right. A design may be protected by copyright, design right and registered design. If you were to sue for infringement of design you could do so in respect of registered designs and copyright. However you could not sue for both copyright and design right. If an action for copyright action is possible then in accordance with section 226 of the Copyright Designs and Patents Act 1988 an action for design right may not be brought. It is usual for both design right and copyright to be pleaded in the alternative ie “one or the other” . This does not apply to registered designs which stands on its own and an action can be brought irrespective of design or copyright infringement.

Reciprocal protection under the Design Right (Reciprocal Protection) Order 1989 (No.2) 1989 (SI 1989/1294). Other countries includes Anguilla, Chanel Islands New Zealand Bermuda, Falklands, Pitcairn, Henderson, Ducie and Oeno Islands, British Indian Ocean Territory, Gibraltar, St Helena, British Virgin Islands Isle of Man South Georgia and the South Sandwich Islands Cayman Islands Montserrat Turks and Caicos Islands.

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