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Overlap between copyright and unregistered design rights

Written by Ben Evans on 21 January 2011

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Copyright and design rights overlap in various areas.

If a copyright work either consists of or includes a design protected by unregistered design rights ('UDR') then infringement of the copyright in a work will not infringe the UDR in the work (s 236).

As a result of this the owner must choose between the two claims i.e. bring a copyright infringement claim only or if there are questions about subsitence of either right then a claim for UDR infringement only. The reason for this restriction under s 236 is to prevent 'double recover' if the owner took actions under both heads. In actual fact there is little overlap between copyright and UDR, with the exception of sculptures and works of architecture the only 3-d copyright works are works of artistic craftmanship (s4(1)), these require 'aesthetic appeal' under Merlet v Mothercare [1986] RPC 115.

The position with copyright and UDR should be contrasted with the position of copyright and registered design rights ('RDR'). Where both copyright and RDR feature in a work the owner can bring an action for infringement of either or both of the rights. In addition UDR and RDR go hand in hand and actions can be brought under both heads.

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