UNREGISTERED DESIGN RIGHT
Free design protection for your new products!
Unregistered design right is an automatic right which subsists in designs, and is similar to copyright in a number of ways. Like copyright, it arises automatically – no registration is required – and like copyright, unregistered design right is only infringed by copying. However, unlike copyright, unregistered design right is a relatively short lived right, only lasting up to 10 years from first marketing or 15 years from first creation of the design, whichever is the earliest.
Types of unregistered design right
There are two types of unregistered design right: UK unregistered design right (UDR), covering only the UK Community unregistered design right (CDR), covering the whole of the European Union - and there are some big differences between these rights. The scope of Community unregistered design right in terms of the designs protected is the same as that for UK and Community registered designs.
The differences between UK unregistered design right and Community unregistered design right
One big difference between UK unregistered design right and Community unregistered design right is that while UK unregistered design right lasts for up to 10 years from first marketing, (or 15 years from first creation of the design, whichever is the earliest), Community unregistered design right only lasts for three years from the design first being made available to the public.
Another difference is that Community unregistered design right can cover a broader range of design features, including the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product or its ornamentation. In contrast, UK unregistered design right only covers three dimensional articles, and in particular does not cover surface decoration or patterns.
However, one important and useful difference is that while Community unregistered design right, and UK and Community registered designs, only cover the visible features of components which are part of complex products, UK unregistered design right can also cover internal features, which may not be visible in use.
Advantages of unregistered design right
- Automatic right – no application or registration required
- Flexibility to select as to whether part or whole of an article is infringed, or both
- Can be useful as a fallback position if no other rights are available, such as registered designs, or in addition to registered designs
Disadvantages of unregistered design right
- Only infringed by copying
- Have to provide evidence of design creation, ownership, date of first marketing/public disclosure
- Can be difficult to prove
Specific pros and cons of UK unregistered design right
- Can be useful as a fall back position if no other rights are available, such as registered designs, or in addition to registered designs
- Doesn't require novelty – design must be original and not commonplace in the design field in question
- Can subsist in both external and internal features
- Cannot subsist in a method or principle of construction
- Cannot subsist in "must fit" features of shape or configuration which enable an article to be connected to, or placed in, around or against, another article so that either article may perform its function
- Cannot subsist in "must match" features of shape or configuration which are dependent upon the appearance of another article of which the article is intended by the designer to form an integral part
- Cannot subsist in surface decoration
- Limitations to ownership – ownership restricted to British or EU citizens or entities
- Infringed by the unauthorised production of articles "exactly or substantially" to the design
- "Licences of right" available in last 5 years of subsistence of design right, which effectively limit exclusivity to 5 years from first marketing and limit the damages payable in the last 5 years
Should I rely on unregistered design right to protect my new products?
Designs rights can be difficult to prove and are relatively short lived. For these reasons we recommend registering designs where possible. Registered designs provide broader protection since they are monopoly rights which do not require copying to have taken place, and evidence of ownership, date of creation and date of first marketing/public disclosure is not required.