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Qualifying for Design Right

Written by Waheedan Jariwalla on 29 May 2009

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Not all designs qualify for design right. To qualify, the design must be the shape or configuration of a product. Two-dimensional designs, such as textile or wallpaper designs, will not qualify, they may be covered by copyright and it is possible to apply for registered design protection.

Design right protection can also not be given to designs that are commonplace, everyday or ordinary.

Semiconductor chips: Designs of semiconductor chips will get design right protection. However, in order to comply with a European Community Directive, the exclusive rights in semiconductor chip designs will last for the full 10 years, so licences of right to copy will not be available during the last five years of the term.

There are exceptions to design right. Design features enabling one product to be functionally fitted or aesthetically matched to another get no protection. These so-called 'must-fit' and 'must-match' exceptions are there so that competing designs for spare parts cannot be kept out of the market.

Competitors cannot be stopped from copying any features of a protected design that enables their own design to be connected to or matched with existing equipment designed by someone else. However, competitors will infringe design right if they copy features of a protected design where there is no need to do so.

Although design right is automatic, far more effective is registering your design. This will give you exclusive rights for the look and appearance of your product. The existence of your design registration may be enough on its own to stop others from trying to exploit your design. If it does not, it gives you the right to take legal action to stop them exploiting your design and to claim damages.

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