Manufacturing designs that are not wholly functional, known as “industrial designs”, are protected chiefly by the different forms of registered and unregistered design right which exist. These designs are normally excluded from copyright except in certain circumstances, for example if the original design drawing is copied simply as a two-dimensional artistic work and not by the production of three-dimensional articles to the design.
Unregistered Rights
UK unregistered design right protects original industrial designs as to the design of any aspect of the shape or configuration (whether external or internal) of the whole or part of an article, other than surface decoration. This right exists without registration, and for a maximum of 15 years. It does not apply to a method or principle of construction, or to features which enable an article to fit to another article, for example as a component or accessory. For UK unregistered design right to exist, the design must also not be commonplace. It protects against copying of the design to produce for commercial purposes articles exactly or substantially to the design.
The initial owner of the UK unregistered design right is, in the case of commissioned works, the person commissioning the design. This is different from the copyright position.
There is also a separate 3-year unregistered Community (EU) design right which applies to the appearance of the whole or part of an industrial or handicraft product resulting from features of, in particular, lines, contours, colours, shape, texture or materials of the product or its ornamentation, which likewise protects only against copying.
Registered Designs
Another form of industrial design protection is the UK or Community (EU) registered design, which similarly applies to the appearance of the whole or part of an industrial or handicraft product resulting from features of, in particular, lines, contours, colours, shape, texture or materials of the product or its ornamentation.
To qualify for valid registration, a design must be new, that is different from anything already made publicly available. It must also have individual character, i.e. the overall impression it produces on an informed user must differ from that produced by any design already made publicly available. In assessing this, account is taken of the degree of freedom of the designer in creating the design. Application should also be made prior to public disclosure to avoid invalid registration.
Registration is not available for industrial designs dictated by the product’s function, to features which enable an article to fit to another article – for example as a component or accessory (but not as part of a modular system), to parts of complex products hidden in normal use, or to designs contrary to law or morality. It is not, however, limited to three dimensional articles.
The protection afforded by registration is the exclusive right to use the design and any design which does not produce on the informed user a different overall impression. Thus, deliberate copying is not needed in order to infringe. Registration thus has a significant advantage over the unregistered design right.
The maximum life of a UK or Community registered design is 25 years in five year terms.
