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Unregistered Design Rights

Some designs may not be able to be registered under the Registered Designs Act, but they may be protectable under the Copyright Designs and Patents Act as unregistered designs.

Under the Copyright Designs and Patents Act a design is any aspect of the shape or configuration of the whole or part on an article.

To qualify for protection the design must be original, and must not be commonplace. If the design meets the criteria set out in the Act then protection is automatic as with copyright.

Certain designs are excluded from protection, most notably, features of designs which must fit or which must match another article.

The design owner has exclusive right to reproduce the design and design right protection lasts either 15 years from when the design was created or 10 years from when articles were first made to the designs.

The person who owns the design right is the designer. However where the design is created by an employee or by a person commissioned to create it then the owner of the design will be the employer or the person who commissioned the design.

Applications for registered designs should be made where possible. Registered designs afford greater protection although, since the amended, registered design right laws are fairly new there is some uncertainty as to how they will be applied.

Points to Note

Some designs which are not eligible for registered design rights may still be protectable by unregistered design rights

The surface decoration of an article will not be protected by design right

It is now possible to claim unregistered design right protection throughout the EU

To succeed in a case of design right infringement you must prove copying. Independently designed ‘co-incidental' similarities will not infringe

Any person is entitled to apply for a licence of right during the last 5 years of the protected period

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