Frequently Asked Questions (FAQs) (click on a subject
and sub-menu)
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1) Patents |
Welcome to our FAQ section covering various aspects of Intellectual Property. These notes serve only as a general guide and are not designed to address any specific issues that you may be concerned with. In consequence, Baron & Warren cannot accept any liability or responsibility for any decisions or actions taken on the basis of these notes. However, we would be happy to discuss any particular matters of interest with you. |
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You are welcome at any time to print these pages and read them at your convenience. However, reproduction of these notes, other than for personal and private use, is strictly prohibited under Copyright law. |
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4) Unregistered Design Rights |
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q What is an unregistered design right? q It is an automatic property right in an original design, which is not common place, of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article. q A design right is not a monopoly right, that is, it cannot be used to prevent a competitor exploiting a design which the latter has created independently. q Is it possible to research unregistered design right? q No. Since this is an unregistered form of protection, there are no records of designs protected by this right.
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q Protection is available for any aspect of the shape or configuration (whether internal or external) of the whole or part of an article q In principle, the features of shape or configuration must be:-
q When is a feature considered as original? q Broadly, if it is created independently by the designer expending some intellectual effort, skill or labour. q When is a feature considered as commonplace? q As a rough guide, any variant which is commonly used in the trade in question can be regarded as commonplace. q What features are excluded from protection? q Features of shape and configuration which result from a method or principle of construction; q Features of shape and configuration which enable the article to be connected to or placed around another article (“must fit” features). q Features which are dependent upon the appearance of another article of which the article forms an integral part (“must match” features; e.g. the shape of a car door). q Surface decoration. q The fact that certain aspects of the shape or configuration of an article are excluded from protection does not prevent other aspects from being protected. q Who is the owner of unregistered design right? q The designer is the first owner of any design right in a design except where:-
q A design may qualify for design right protection if the first marketing of articles made to the design is by a person exclusively authorised to put such articles on the market in the UK and the first marketing takes place in the UK or in another member state of the EEC, in which event, the person exclusively authorised to put the articles on the market is the first owner. q How long does an unregistered design right last? q 10 years after first marketing of articles made to the design with a maximum period of 15 years from creation of the design. q In the last 5 years of a design right term any person is entitled, as a matter of right, to a licence. q What about unregistered design right protection abroad? q With the exception of the European Union, which has a unitary right covering all member states, unregistered design rights do not exist abroad. In order to obtain protection abroad, other forms of protection, such as registered design and copyright, must be relied upon, as appropriate. q The unitary European Union unregistered design right affords protection for three years from the date on which the design is publicly available provided it could reasonably become known to a specialist, in the sector concerned, operating within the European Union, even if published anywhere else in the world. q How does unregistered design right differ from registered design protection and copyright? q Unregistered design right cannot be used to protect a two dimensional design applied to the surface of an article, unlike registered designs and copyright. q Contrary to registered designs, features which are internal may be protected. q The term of protection afforded by the unregistered right is shorter than that provided by a registered design (maximum 15 years as compared to 25 years for a registered design). q Registered and registered design rights can be used to prohibit the manufacture of articles made to the design whereas, save in the case of artistic works, copyright may only protect the drawing from which the article is made.
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q How is unregistered design right infringed? q The right is infringed by any person who copies the relevant design for commercial purposes without authorisation; and q makes articles to that design; or q makes a design document recording the design for the purposes of making such articles. q trades in an article, without the licence of the design right owner, which he knows or has reason to believe is an infringing article. q Can a design right be transferred like any other property right? q An unregistered design right may be transferred by assignment or may be the subject of exclusive or non-exclusive licences. To be effective, an assignment or exclusive licence must be in writing and signed by the design right owner.
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