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Last edited 16 Feb 2021
When architects and others create innovative product designs e.g graphic symbols, logos, door handles, stylish cutlery and so on it can be important for them to ensure that third parties cannot copy the design and potentially profit from so doing. This can be prevented by registering the design.
Anybody can apply to register a design under the Act, and it has become increasingly popular with small- to medium-sized businesses, and with applicants without easy access to legal representation. The purpose of gaining registration for a new design, is that the proprietor can seek to enforce the registration in a court of law, and gain an injunction, with damages, against any other trader who is found to be copying their design either knowingly or otherwise.
Under the Registered Designs Act 1949, a design is defined as "...the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product or its ornamentation."
Registering a design gives the designer a monopoly right for either the appearance of the entire object or just a part of it. The Act requires that for a design to be registered it must be 'new and have individual character'.
The product has individual character 'if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public beforehand'.
The right is tangible, published and readily apparent to third parties. It exists even if a third party produces an identical design without having copied or having had sight of the registered design.
Registering a design therefore provides complete protection. However, registering does not confer the right – the design arises as soon as the work is created – and in this respect it is similar to copyright. In the UK, applications are made to the UK Intellectual Property Office.
With an unregistered design, the owner has the power to prevent others from unauthorised copying. There are two types of unregistered design, one covering the UK, the other the whole of the European Union (Community Design).
Registering through the Community Design system gives protection across the whole of the EU. A Community Design can be either registered or unregistered. In a court action, an unregistered Community Design owner must provide proof of date and place of the first disclosure of the design if they are to defend successfully their right or act against counterfeiters.
Copyright is one of a number of rights that protect intellectual property. Copyright is the right of an author, artist or composer to prevent another person copying an original work. It applies to ‘work’ not to ideas. The right is given by the Copyright Designs and Patents Act 1988.
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