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. |
