An unregistered design right is referred to Copyright, Designs and Patents Act 1988 as a ‘design right’. Design is defined as ‘any aspect of the shape or configuration (whether internal or external) of the whole or part of the article’. The design must be original and not common place in the design field in question. No right subsist unless the design is recorded in a document or an article has been made of the design.
Unregistered design rights have to be original and not a copy and must not be commonplace in the design field in question. This right protects against copying, therefore the design in question has to be distinguishable from all other goods of that type in the market place. The following cases highlight this:
In the case of Farmers Build Limited v Carrier Bulk Materials Handling Limited, it was held that putting together a number of different commonplace features together in a new way can result in a design that is not commonplace. In Jo-Y-Jo Limited v Matalan Retail it was held that flowers embroidered on vests were commonplace. The case of Lambretta Clothing Company Limited v Teddy Smith UK Limited and Next Retail plc showed how claiming unregistered design rights can fail. It was held that the outline shape of the track top was not original as it had itself been copied from another garment; the Lambretta logos were surface decoration and therefore excluded from registered design rights; mere juxtaposition of patches of colour on the garment did not fall within the meaning of configuration and two dimensional colour applied to the garment did not generate an original three dimensional design. In contrast the case of Guild v Eskandar Limited unregistered design rights were said to exist in the garments based on the fact that there was sufficient originality in the Iranian Ethnic Clothing.