Unregistered design right
What are unregistered design rights, what do they protect, how long they last and how can a business defend them
In the UK, unregistered design rights protect the shape or configuration of products. The rights arise automatically on the creation of the work and come into force when the article is first made or 'fixed' in a document - eg a drawing or a computer model.
How long does UK design right last?
UK design right lasts for ten or 15 years, depending on when the product is first sold or created - whichever comes earliest. You can buy, sell or licence a design right.
What is eligible for unregistered design right?
For the design rights to apply, the design has to be:
- original - ie your own work and not a copy
- non-commonplace - ie not broadly known in the similar category of products
A design right will not apply if the design is dictated by the need to fit onto something else or match the rest of the product.
UK design right also won't apply to any two-dimensional surface decoration, eg textiles or wallpaper. For this, see registered designs.
Who owns the design right?
Generally, the design right belongs to the person who created the design. However:
- if the work was created by an employee during the course of employment, the right will belong to the employer
- if the work was commissioned from a designer, the person commissioning the work will own the rights (unless otherwise agreed)
What do design rights protect?
Design rights protect against unauthorised copying. However, a design right is not a monopoly right and may not stop others from producing similar articles by independent creation.
In infringement actions, the burden will be on you (ie the owner of the right) to show that the right exists and that copying has taken place.
European unregistered community designs
Designs, including patterns, may be protected in the European Union (EU) as . UCDs provide a three year protection for two- and three-dimensional designs.
From 1 January 2021, UCDs are no longer valid in the UK. On 1 January 2021, pre-existing UCDs have been replaced by UK rights and will remain in force in the UK as Continuing Unregistered Designs (CUDs) for the remainder of their three year term. Under the new law, a new unregistered design right has been created in the UK, called supplementary unregistered design (SUD). It provides similar protection to that conferred by the UCDs, but for the UK only. For current information on these, see: changes to unregistered designs from 1 January 2021.