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Overview of Design Law

Written by Corinne Day on 27 July 2007

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A design was once described as “intelligence made visible” (Le Corbusier). According the Registered Designs Act 1949 ‘design’ means the appearance of the whole or part of a product resulting from the features of, in particular, the lines, containers, colours, shape, texture and/or materials of the product itself and/or its ornamentation.

An effective design will inevitably be copied, thus intellectual property plays an important role in protecting a successful design. A number of intellectual property rights have in the past been used to protect a design, such as copyright and patent law.

It can be said that there are two types of design right which exist in the UK- the registered design and the ‘design right’, the latter of which was created by Part III of the Copyright, Designs and Patents Act 1988. If you can imagine a continuum of intellectual property law with patent law on the one side and copyright law on the other, registered design would sit nearest to patent law, as both require a registration process, whereas the ‘design right’ subsists automatically as does copyright. In addition to this, copyright law can be used to protect any documents such as a diagram or a drawing of the design. There are also the registered and the unregistered rights recently made available at a Community level. Arguably, design law is thus unnecessarily complex due to the many types of protection.

The first type of design protection was the registered design right, which was originally intended to protect the aesthetic element of design law. However, designs could also be protected by copyright law (especially on the basis of the design drawings that were artistic works), and was thus potentially providing protection which was cheaper (as copyright requires no registration process) and longer. In response to this, the 1988 Copyright, Designs and Patents Act modified the Registered Designs Act 1949 so that registration was confined to aesthetic designs, adding defences to copyright infringement (ss 51 and 52 CDPA 1988) and stablishing a new unregistered design right regime which is intended for non-aesthetic designs. Thus, copyright law now only plays a residual role in the protection of designs.

In order to register a design, the following are required:

· A design (s.1(2) RDA 1949);

· Novelty (ss.1(B)(1),(2), (5), (6) and (7) RDA 1949);

· Individual character (s.1B(1),(3) and (4) RDA 1949);

· Does not fall into any of the exceptions to registration:

§ A component part of a complex product not visible during normal use (s.1B(8) RDA 1949);

§ Functional designs (s.1C(1) RDA 1949)

§ The interface exception (s.1C(2) and (3) RDA 1949);

§ Designs contrary to public policy or the accepted principles of morality (s.1D RDA 1949), and;

§ Certain emblems etc (Sch1 RDA 1949).

The unregistered design right arises automatically (as does copyright) on creation of a design. In order to establish the existence of an unregistered design right it is necessary to show

· That there is a ‘design’ (s.213(2) CDPA 1988)

· Which falls outside the exclusions from design right s.213(3) CDPA 1988 i.e. methods or
principles of construction, ‘must fit’ designs, ‘must-match’ designs, surface decoration.

· Which is ‘original’ (s.213 (4) CDPA 1988) and

· Which qualifies for protection in the UK (ss. 213 (5) and 217-221 CDPA 1988)

Considering that design law (the registered design) is much cheaper than say trade mark law or patent law as a means of protection, design law has the potential to be abused. Thus, design law has been known to have protected subject matter that would have probably been better protected by another intellectual property right. The law surrounding designs thus remains rather complex.

Registered designs underwent substantial reform in December 2001 in order to implement the Directive on the Legal Protection of Designs (Directive 98/71/EC). Further reforms recently took place in late 2006; these reforms to the design regime were less far-reaching but are also noteworthy. There has been a vast increase in the number of things that are registrable as compared to the law before 2001. There have also been more recent changes; following the reforms introduced by The Regulatory Reform (Registered Designs) Order 2006 (Statutory Instrument 2006 No. 1974), which took effect on October 1 2006, there is no longer substantive examination of applications for novelty and individual character, multiple designs can now be covered in a single application and all registered designs must now be published (the applicant may request deferment of publication and registration for up to 12 months). The text of the RDA 1949 has also been altered as a result of the 2006 reforms.

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