This article is directed towards creative industries. The purpose of this article is to outline the UK design right.
Scope of the UK design right
Section 213(2) of the Copyright, designs and Patents Act 1988 (“the Act”) gives protection to any aspect of the shape or configuration whether internal or external of the whole or part of an article.
Requirement of originality
Section 213(1) requires that a design right must be original. The Act does not define originality but it has been decided that an article is original if it is not “commonplace” in the design field at issue assessed at the time the article was created.
The court in A Fulton Company Ltd v Grant Barnett & Company Ltd has provided guidance on the issue of originality as summarised as follows:
Originality should be assessed by a comparison of the design of the article in the field including the alleged infringing article at the time of creation. The court will look and see whether the article in question is simply copied from the design of another article.
If the court is satisfied that there is no copying from an earlier article then the court will look at the degree of similarity to the design of similar designs in the same design field.
Requirements of recording the design or making an article to a design
A design right will not exist unless recorded in a design document or an article is made to a design.
“a design document” – section 263(1) of the Act states that a design document is any record of a design, whether in the form of a drawing, a written description, a photograph, data stored in a computer or otherwise.
So even a first draft of a garment for example could be capable of falling with section 263(1) of the Act. For instance in Sales v Stromberg & Others sketches of jewellery were not prevented from design protection.
The qualified person test
The law provides that the designer must be a qualified person or the commissioner or employer of the designer. So the question is who is the qualified person?
A qualifying person is a citizen or subject of or habitually resident in a qualifying country or a company or other legal entity formed under the law of any part of the UK or a qualifying country and within that country is a place or business where substantial business activity is carried out.