Design right exists by virtue of section 213 of the Copyright Designs and Patents Act 1988 (“the Act”). The relevant provisions can be found at s213 (1) which states that -Design Right is a property right which subsists in accordance with this Part in an original design. Where a design means any aspect of the shape or configuration (whether internal or external) of the whole or any part of an article.
Section 3 deals with those areas of design right which are not covered namely, a method or principle of construction, where it is commonplace in the design field in question at the time of its creation and it will only exist when the design has been recorded in a design document or an article has been made to the design.
As an owner design right in a design has the exclusive right to reproduce the design for commercial purposes. It follows that anyone who produces articles exactly or substantially to your design infringes your design.
It is ususal in design cases to attack the originality of the design. You attack the design by claiming that the design was commonplace
It was observed in Farmers Build Ltd v Carier Ltd that although the term commonplace is not defined in order to see if a design is commonplace …-it is necessary to ascertain how similar that design is to the design of similar articles in the same field of design made by persons other than the parties or persons unconnected with the parties Ã¢ÂÂ¦ If a number of designers working independently of one another in the same field produce very similar designs by coincidence the most likely explanation of the similarities is that there is only one way of designing that article. In those circumstances the design in question can fairly and reasonably be described as ‘commonplace’. It would be a good reason for withholding the exclusive right to prevent the copying in the case of a design that, whether it has been copied or not, it is bound to be substantially similar to other designs in the same field.- This includes commonplace in the industry.
Jacob LJ in Lambretta Clothing Co Ltd v Teddy Smith (UK) Ltd [20-05] RPC 6 at para 45 -I think that when the Act speaks of ‘design field in question’ a reasonably broad approach is called for. What matters are the sort of designs with which a notional designer of the article concerned would be familiar.-
If the design was not commonplace than by virtue of section 226, a person infringes if, without authority, he copies the design so as to produce a design exactly or substantially to the unregistered design. There are therefore 2 elements – copying the design, and doing so so as to produce articles to exactly the same or substantially the same design.