Surface Decoration and Design Protection

This short note looks at the protection afforded to so called ‘surface decoration’ under UK law.

Mere surface decoration is not protected by UK Unregistered Design Rights by virtue of s213(3)(c) of the Copyright, Designs and Patents Act 1988. This exclusion applies to 2-dimensional designs on the surface of a product (see Dyson Ltd v Qualtex (UK) Ltd [2006] EWCA Civ 166).

Unregistered design rights can however subsist in 3-dimensional surface patterns, but one must consider the case of Lambretta Clothing Co Ltd v Teddy Smith (UK) Ltd [2004] EWCA Civ 886 which stated that surface design feautures (for example colour) that extend beneath the surface do nnot make it a 3-dimensional feature.

Other options to protect surface deecorations are by way of a registered design, some aspects may qualify for protection as an unregistered community design, there may be rights in the decoration under trade mark law for example by way of registration or through unregistered rights and passing off, finally the design drawing for the decorationn will be protected via copyright as an artistic work.

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