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UK Unregistered Design Right - Changes in the Law

Written by Thomas Mould on 16 December 2016

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UK unregistered design right (UK UDR) is a useful IP right which is often overlooked by rightsholders.

It protects the shape or configuration of the whole or part of a product for ten years from the date the design was first (or 15 years from the date it was first recorded in a design document if that period is shorter).  The main difference in terms of protection is that UK UDR does not protect surface decoration (unlike Community unregistered design right and registered designs).

A recent IPEC case, Action Storage v G-Force Europe [2016] EWHC 3151 (IPEC) considered what UK UDR resided in some plastic storage lockers (if any).

The scope of UK UDR protection

UK UDR is not a new right but on 1 October 2014 the words "any aspect of" were deleted from its definition.  This means that section 213(2) Copyright Designs and Patents Act 1988 (CDPA), which sets out the statutory definition of a design now reads:

"in this Part 'design' means the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article".

What does the removal of these three words mean and when does the change take effect?

The removal of the words could mean: (i) abstract designs which are not tied to a design drawing or article are no longer permitted; or (ii) nothing at all - the view the authors of Copinger (17th edition).

Similarly, the timing for this change (or lack of change) could (i) be retrospective; (ii) apply to all cases commenced after 1 October 2014; or (iii) apply to all designs created after 1 October 2014.

This change in law needs to be clarified with future case law.

 

If you'd like to know more about this article please send an email to Thomas Mould quoting the article title and any questions you might have, alternatively call the office number on 02380 235 979 or send an enquiry through our contact form.

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