Fact sheet P-15: Designs and design rights
Issued: 29th July 2004
Last amended: 29th July 2004
Designs may be subject to three types of protection, copyright, unregistered design rights and may also be registered nationally as registered designs. The actual details of design rights will vary depending on national law. Please see your national patent office for specific details.
- What is a design?
The appearance of a product, in particular, the shape, texture, colour, materials used, contours and ornamentation. To qualify as a new design, the overall impression should be different from any existing design.
- Who owns the design right?
Typically the creator of the design owns any rights in it, except where the work was commissioned or created during the course of employment, in which case the rights belong to the employer or party that commissioned the work.
- Unregistered design rights.
Unregistered design rights protect the shape or configuration of a marketable (or potentially marketable) product, and are used to prevent unauthorised copying of an original design. Design rights can also be bought, sold or licensed in a similar manner to copyright.
Design rights exist independently of copyright, while copyright may protect documents detailing the design as well as any artistic or literary work incorporated within the finished product, the design right focuses more on the shape, configuration and construction of a product.
In the UK, unregistered design rights have been available since 1989, and have been available since March 2002 throughout the European Community.
Unregistered design rights are automatic and are treated in the similar manner as copyright. For this reason they may be registered with Copyright Witness in the same manner as copyright work in order to establish proof of the date and content of the work in case of any later dispute or legal claims.
Please note that a Copyright Witness registration provides international evidence of an unregistered design right, this is not the same as a registered design, which would be administered by governments at a territory/national level.
The Office for Harmonization in the Internal Market (Trade Marks and Designs) state that:‘...in practice the holder of the UCD (unregistered Community design) may encounter serious problems proving that the protection exists’Source: http://oami.europa.eu/ows/rw/pages/RCD/FAQ/RCD1.en.do 25th March 2009Clearly a Copyright Witness registration can be of value in such cases by ensuring their is independent evidence to support a claim.
- Duration of unregistered design rights.
Within the European Community, unregistered design rights lasts for 3 years from the point the design is first disclosed or made available to the public in some manner.
In the UK rights the duration is 10 years from the end of the calendar year in which the design was first made into a marketable product. The original date the design was first fixed in a tangible form is also taken into account, and the duration should not exceed 15 years from the end of the calendar year in which the design was first recorded.
The UK 10 year duration is split into two 5 year periods: Exclusive rights are retained for the first 5 years, but during the last 5 years other parties are allowed to apply for licenses to the design (for which the owner may claim royalties).
For UK designers, both the UK and EC rights can exist at the same time.
- What constitutes an infringement?
An unregistered design is only infringed by copying. Independently created designs are not infringements. You have the right to take civil court action against infringement of a design right.
- Duration of unregistered design rights.
- Registered designs
A registered design may be applied for to provide additional cover over and above any design right or copyright protection that may exist in the design. Registered designs are administered by the Office for Harmonization in the Internal Market (Trade Marks and Designs) in the EU, and the Intellectual Property Office in the UK.
In the US designs may be registered as part of the standard patent system via the United States Patent and Trademark Office, where they are treated as ‘design patents’, (as opposed to ‘utility patents’).
The benefit of a registered design is that the design may enjoy prolonged protection from copying, although this protection would only be available in countries or territories where the application was made, up to 25 years protection is available in the UK and EC.
- Copyright in designs
Copyright may exist in designs, and will principally protect documents detailing the design as well as any artistic or literary work incorporated within the finished product. Please see our copyright information pages for details of copyright protection.
Evidence of your claim to copyright and unregistered design rights may be obtained by submitting your work to Copyright Witness.
This fact sheet is Copyright © Copyright Witness and protected under UK and international law.
The use of this fact sheet is covered by the conditions of a Creative Commons Attribution-Non-Commercial-No Derivative Works License.
This fact sheet is intended only as an introduction to ideas and concepts only. It should not be treated as a definitive guide, nor should it be considered to cover every area of concern, or be regarded as legal advice.