Registered and Unregistered Design

A registered design is a temporary statutory monopoly. It stops people doing things. Concerning intellectual property rights which involve a monopoly, the public interest is always to be borne in mind. An entry in the register is the means whereby the public can ascertain everything they require to know from the practical point of view with regard to a particular design. It is therefore essential that entries should be correct from the start.

The national unregistered design right was first created by the Copyright Designs and Patents Act 1988 [CDPA 1988]. This introduced for the first time, the possibility of an applicant for a registered design being made by someone other than the owner of an unregistered design right in the same thing.

 Section 3(2) (CDPA ’88) was intended to address this possibility. The policy was plainly to avoid separation of ownership of the two legal rights. The subtle distinction between the claim required under s. 3(2) and a claim to own the design can be seen from the wording of the Declaration of Designs Form 2A.

 This requires the person making the declaration to state that the applicant claims to be the proprietor of the design and the owner of any design right that exists in this design. See also sections 3(2) and 3(3) of the post 2001 version of the Act.

The registrar’s view is that, like any other official declaration or legal claim, the declaration on Form DF2A is not to be treated lightly. In the registrar’s submission applicants should not be left with the impression that the making of such a declaration is not without importance or consequence. Section 34 of the Act makes causing a false entry to be entered in the register a criminal offence.

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