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Design rights and registered designs

A design is defined by section 213 of the Copyright, Designs and Patents Act 1988 as “the design of the shape or configuration (whether internal or external) of the whole or part of an article”.

A design right is a property right relating to an original design, which comes into existence only once it has been reduced to a particular form, such as a drawing or model.

The right belongs initially to the designer, unless the design has been created in the course of employment, in which case there is a statutory presumption that it belongs to the employer. That presumption can be varied by contract. The right can be assigned or licensed, and enforced against infringement, eg by someone using the design without consent.

Design rights are governed by Part III of the 1988 Act.

A registered design is something older and different. It arises under the Registered Designs Act 1949, which defines it as “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”.

By section 1B it has to be a novel and original design, and by section 1C it cannot be a design simply dictated by the function of the article. Nor (and this is where the legislation shows its age) can it be protected if it is “contrary to public policy or to accepted principles of morality” (section 1D)

By section 7 “registration of a design under this Act gives the registered proprietor the exclusive right to use the design”.

Once the design has been registered, the proprietor can protect it against infringement by another person.

Community design rights (or Community designs) are something else again. They arise under EU law and can be either a registered or unregistered. They are governed by Council Regulation (EC) No 6/2002. 

A Community design must, as well as being novel, have “individual character” which is dependent on the effect it has on the “informed user”. (These requirements have, as you might expect, generated case law.)


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