In the UK, there are two types of design rights: registered design rights and unregistered design rights and we have set out the key features and differences between the two below.
- Registered Design Right:
- What do we mean by "registered design right"? A registered design right is obtained by registering a design with the UK Intellectual Property Office (UKIPO). It grants the owner exclusive rights to use the design and prevents others from using it without permission.
- Protection Period: Registered design rights typically last for up to 25 years, subject to renewal fees.
- Requirements: To obtain a registered design right, the design must be new and have individual character.
- Notice of Rights: When a design is registered, it is publicly recorded in the UKIPO's database, providing clear notice to others about the existence of the design right and the rights associated with it.
- Enforcement: Owners of registered design rights have stronger legal protections and can enforce their rights more easily in case of infringement, as the registration serves as prima facie evidence of ownership.
- Scope of protection: The scope of protection awarded for a registered design are wider than that for an unregistered design. This is because infringement of a UK registered design can occur where a person creates a design (i) which is the same as the registered design or (ii) which is not exactly the same but which does not produce a different overall impression on the informed user. However, the scope of protection afforded to an unregistered design is much narrower as it
- Why register a design?
- A registered design confers a 25-year monopoly right in the design. Registration gives the exclusive right to make articles incorporating the design. This allows the rights-holder to sue for infringement even where the defendant did not copy the design.
- The process of getting a registered design is relatively short and inexpensive when compared with, for example, getting a patent.
- Registration indicates that the owner has incurred time and expense in protecting their design, which serves as a deterrent to third parties from using that design.
- From a practical commercial point of view, the fact of having a registration may help build up the reputation and goodwill relating to the product concerned, particularly when used in conjunction with a strong trade mark.
- Unregistered Design Right:
- What do we mean by "unregistered design right"? An unregistered design right arises automatically when a new design is created, without the need for registration. It provides some level of protection to the creator of the design.
- Protection Period: Unregistered design rights typically last for up to 15 years from the creation of the design, subject to certain conditions.
- Requirements: Unregistered design rights protect the shape and configuration of a design, but they do not protect surface decoration. The design must be original and not commonplace in the design field.
- Notice of Rights: There is no formal registration process for unregistered design rights, so there may not be clear public notice of the existence of the rights.
- Enforcement: Enforcing unregistered design rights can be more challenging compared to registered design rights, as the burden of proof lies with the owner to establish the existence of the right and the originality of the design.
- Scope of protection: It is a right to prevent copying. Rights-holders faced with unauthorised copying may sue for infringement. Therefore, unlike the scope of protection afforded to registered designs, there is no infringement of an unregistered design if the alleged infringer has independently produced the same or a substantially similar design; as in the case of copyright (and in contrast to the position with registered designs), the claimant must prove copying.
In summary, the main differences between registered and unregistered design rights in the UK lie in the formal registration process, duration of protection, notice to the public, ease of enforcement and scope of protection. Registered design rights offer stronger and more easily enforceable protection, while unregistered design rights provide automatic but somewhat limited protection.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.