I have a design which I want to protect – help!
Well thanks for the question. What we are discussing here is Intellectual Property Rights ( ‘IPR’). The IPRs can be classed in to two categories a. Registered Rights, ie Patents, Registered Trade Marks and Registered Designs and b. Unregistered rights namely copyrights, designs, know how and confidence.
UK registered designs
1. The law of registered designs is regulated by the regime laid down in the Registered Designs Act 1949 (RDA) as amended by the Copyright Designs and Patents Act 1988 (CDPA); the Registered Design Regulations (2001) together with the Registered Design Regulation (2003).
2. Under the design regime it is therefore possible for a designer to register and obtain a right in their designs thereby granting the registrant a monopoly right in the same which entitles the registrant to prevent others from copying and exploiting his works.
3. Most commentators argue that that the registration system has its shortcomings. There is a stream of authority which points towards the costs element of the regime and the impracticality of going through the process of registration for each and every sketch, draft, design drawing, prototype, and final item produced.
4. The purpose of the UK registered design right is to protect the appearance of the whole or part of an item, and in particular the lines, contours, colours, shape, texture or materials of the product or its ornamentation.
5. For a design to be registrable in the UK the product must:
(i) Comprise an aspect of shape or configuration but not be a design for surface decoration.
(ii) Be original. (The reader should note that the assessment of originality is an assessment of the design as a whole and so it is possible to merge existing designs to give an original which significantly differs from existing designs).
6. Once the UK design right is obtained the right can last for a maximum of 25 years.
EU registered designs
7. It is also possible to obtain protection in the form of an EU wide registered design. This gives the EU design right an advantage over the UK registered design right which only affords protection in the UK.
Are my designs registrable in the EU?
8. EU registered designs must:
(i) Be new. In other words there must not be an identical design that has been made available to the public.
(ii) Have individual character. The degree of freedom of the author in creating the design is taken into consideration. Designs are deemed to be identical if their features differ only in immaterial details.
9. Once protection has been granted it can last for up to 25 years.