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Design Law: The basics

Written by Andrew Wilde on 08 July 2009

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The definition of a design can be found under section 213(2). In order for a design right to subsists there must be a design within the meaning of section 213(2) of the 1988 Act. Section 213(2) provides that a design means the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article. The definition of "any aspect of the shape or configuration (whether internal or external) of the whole or part of an article" is wide and it follows that different interpretations can be applied to design law. The terms "design right" and "unregistered design right" are the same thing. Section 213 of the Act refers to "design right", whereas "unregistered design right" is sometimes used in order to distinguish it from the protection accorded to registered designs under the Registered Designs Act 1949. An important difference from the law of registered designs is that design right does not create anything which could be called a statutory monopoly. It is a right which prevents copying. This means that if an article is produced which looks the same but which was not copied either directly or indirectly there is no infringement.

Design right has been in force for over 20 years now, and as a consequence there is a fairly substantial body of case law. A design is excluded, under section 213(4), if it is "commonplace" and the first case concerning commonplace was the Farmers Build case which went to the Court of Appeal.

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