Design rights protect the appearance of a product, and can be a valuable asset in any IP portfolio. Here we discuss the various design rights available in the UK and Europe.

Unregistered design rights

Some types of design protection arise automatically when a design is created. These are referred to as “unregistered” design rights.

Both the UK and the EU provide unregistered design rights, but there are differences in what is protected and how long that protection lasts. 

In the UK, unregistered design right only applies to the shape and configuration (how different parts of a design are arranged together) of objects. It does not cover surface decoration. The European unregistered design right, known as Community unregistered design right, covers surface decoration as well as shapes.

UK unregistered design rights last for 10 years after the design was first sold or 15 years after it was created – whichever is the earliest. Community unregistered design right only gives protection for 3 years, running from the date the design was first made available to the public in the Community.

Unregistered design rights can be very useful and have been enforced in a number of big ticket cases. The main drawback to unregistered design rights is that they only provide protection against someone copying the design. So, if a design owner wishes to rely on an unregistered design right to stop a third party from using their design, the owner would have to prove that the third party had copied the design, rather than coming up with the same design independently. This adds a considerable additional burden to enforcing unregistered design rights.

Registered design rights

For stronger and longer protection, it is possible to obtain registered design rights. Registered designs require an application at an intellectual property office, and they need to meet certain criteria.

In particular, the design has to be new, and have “individual character”, meaning that it gives a different overall impression on an informed user, as well as meeting certain formal requirements. If the requirements are met, a registered design right gives protection for up to 25 years.

Registered design rights do not just protect against copying, but give a monopoly on the design. This allows the design owner to stop someone from using their design whether they copied it or came up with it independently.

Applications for UK registered design are filed at the UK Intellectual Property Office. For EU registered designs, applications are filed at the European Union Intellectual Property Office. Compared to other registered IP rights, registered designs are relatively low cost and generally proceed to registration quickly.

In the EU and UK, to be registrable a design must be new, i.e. not be known in the market, and have independent character, i.e. not be too similar to known designs. Some territories offer a 12 month grace period for disclosures originating from the designer, meaning that disclosures made by the designer in the 12 months prior to filing an application are not taken into account when considering whether the design is new. The grace period is not available everywhere, so it should not be relied upon, though. We recommend considering your filing strategy, prior to any disclosure if possible.

When applying for a registered design right, the way the design is represented is key, since it determines the scope of protection. It is important to ensure any design registrations you have continue to be relevant and sufficient as any changes are made to the products covered. It may be necessary to file new applications to cover modifications.

This article is for information only. For detailed advice, please get in touch with your usual contact at Greaves Brewster or any of our designs team.