Is Your Design Capable of Registration?
Written by Aneela Akbar on 08 May 2012« Return to Reading Room
The definition of a registered design can be found in s 1 (2) of the Registered Design Act 1949 ('RDA 1949'):
"...the appearance of the whole or part of a product resulting from the features of, in particular, the lines, contours, shape, texture and/or materials of the product itself and/or its ornamentation."
A 'Product' is defined in s 1(3) of the RDA 1949 as:
"Any industrial or handicraft item other than a computer program: and in particular, includes packaging, get-up, graphic symbols, typographic type-faces and parts intended to be assembled into a complex product."
A design that you are proposing to register must meet the following requirements in order to be registerable:
A design must be 'new':
For the purposes of design registration a design is new if there is no identical design or a design whose features differ only in immaterial details that has been made available to the public before the relevant date.
When questioning whether a design is new one must consider whether the design already exists in the 'prior art in the sector concerned'; that is the sort of designs which are already known of or in use at that date, both by buyers and by persons carrying on business and specialising in the sector concerned.
A design must posses 'individual character'
For the purposes of design registration a design posses individual character if, when looked at the design in its entirety the idea it produces on the informed user differs from the idea produces by any other design that is already available to the public before the relevant date.
The question of individual character is whether the designer has taken advantage of making a design that is different in the eyes of an 'informed user' from one that is already available. This was considered in J Choo (Jersey) Ltd v Towerstone Ltd. Where in a pirated handbag claim an 'informed user' was said to be neither the women in the street nor a handbag designer, but rather someone with knowledge of handbag design.
12 Months Grace Period
The RDA 1949 provides a grace period of 12 months within which a designer should disclose the design to others.
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