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If you have a design this is what we can do for you

Written by Michael Coyle on 21 August 2009

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In the UK we are concerned with two forms of designs one is unregistered and the other is registered. A person who is entitled to an unregistered design right has the exclusive right to reproduce the design for commercial purposes by making articles to that design or by making a document recording the design: this can be found in the Copyright Designs and Patents Act 1988 Act s. 226 (1).

Section 226 (3) provides: "Reproduction of a design by making articles to the design means copying the design so as to produce articles exactly or substantially to that design" What constitutes an article is not defined any further but section 260 (1) provides:

"The provisions of this Part apply in relation to a kit, that is, a complete or substantially complete set of components intended to be assembled into an article, as they apply in relation to the assembled article."

In Farmers Build Ltd v Carier Bulk Handling Materials Ltd 1999 RPC 461 Mummery said

"The purpose of copyright and of design right is not to protect the "novelty" of the work against all competition; it is to provide limited protection against unfair misappropriation of the time, skill and effort expended by the author of design on the creation of his work."

The statutory provisions

Section 213 of the Copyright Designs and Patents Act 1988 provides, so far as material:

(1) Design right is a property right which subsists in accordance with this Part in an original design.

(2) 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.

(3) Design right does not subsist in (a) a method or principle of construction,

(b) features of shape or configuration of an article which (i) enable the article to be connected to, or placed in, around or against, another article so that either article may perform its function, or (ii) are dependent upon the appearance of another article of which the article is intended by the designer to form an integral part, or

(c) surface decoration.

(4) A design is not "original" for the purposes of this Part if it is commonplace in the design field in question at the time of its creation."

As many judges have commented, section 213 is notoriously difficult to understand. Jacob LJ went as far to say in Dyson v Qualtex: "It has the merit of being short. It has no other."

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