There are two forms of design right, Registered Design and Unregistered Design. By using these methods effectively it is possible for a design firm to protect the form of any products they have designed.

Registered design applies to a three-dimensional product only, so therefore doesn’t protect surface decoration or any two-dimensional patterns such as wallpaper or carpet designs. It also doesn’t cover functional aspects, only the visual appearance of the design, including lines, contours, colours, shape, texture, materials and the ornamentation of a product that give it a unique appearance.

Unlike copyright this intellectual property right isn’t automatic and therefore must be applied for from the Design Registry for a fee. This however does provide protection against those who copy and those who do not, for a maximum of 25 years should the right be renewed every 5 years. It should be clarified that the phrase “those who do not” relates to designs that whilst developed independently by a company end up looking similar to the registered design. In these situations the Right Holder can take legal action against the infringement.

A design however can’t be registered if it has been more than 12 months since disclosure. Other issues that need to be considered when applying for a registered design right is whether the design is new, so isn’t the same as any design which has previously been released into the public domain; and that it is individual in character, where an informed user must get the impression that it is different from previous designs.

In contrast, an unregistered design is automatic and can be treated in the similar manner as copyright, therefore secure records of date of production and owner are required. Unlike a registered design, an unregistered design right doesn’t need to apply to the product’s appearance. Whilst an unregistered design will protect against direct copies of the work, it doesn’t stop others producing similar articles by independent creation. This form of protection offers a 10 year period of exclusivity on the three-dimensional form, the copyright on the initial designs however protect for 70 years.

There are exceptions to both design rights being possible including, “spare parts which must be of a particular shape to fit another article” (inbrief.co.uk) allowing competing designs for spare parts to be released to the market. The other is that companies are allowed to copy features of a design with protection so that their own designs can be “connected to or matched with existing equipment designed by someone else” (ipo.gov.uk); an example of this is the Apple iPhone, where multiple companies produce accessories that fit the phone but don’t infringe upon the registered design. 

There are current pressures upon design rights, primarily because they vary from country to country, where some places don’t have unregistered design rights and lesser regard for infringement. For example in the UK both forms of design rights only offers “protection in the United Kingdom”. Due to this our fictional company Caru Design will have to seek other protection in foreign countries such as petty patent or registered design systems. This lack of unity among the design right protection has led to pressures to stop the problem of fakes and plagiarisms that are created by companies as they can damage companies reputations as well as the economy by driving manufacture elsewhere. An example of this is a multifunctional workbench “originally designed by one German firm and nearly dead-copied by another” (core77.com), due to Germany’s weaker design right laws.

We shall be taking a short break for the next few days until after Christmas then we shall be back with Trade Secrets and Confidentiality Agreements!

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