Design Rights

The concept of protection for design rights falls under the Copyright Design and Patents Act 1988.

The objective behind the protection is that owners may design work in a specific way and would therefore

become part of work that attracts customers.

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There are three ways in which to protect a design right; registered design, artistic copyright and unregistered design. Registered design is given under the Registered Designs Act 1949, artistic copyright and unregistered design is given protection under the CDPA 1988.

Registered Design

The rights given under the RDA 1949 are similar to the legal rights given for patents. The right is given for a period of 25 years. A design can be registered providing that it is innovative and has individual character. Design and product do have very distinct definitions under the RDA 1949.

Again with ownership of the design right, usually it is the creator of the design. The exception for employees still applies, however the situation with commissioners is different in the fact that the person who commissioned the design is the owner.

Infringement is very similar to copyright infringement; if a party makes or puts the design product on the market without the owner’s permission he is infringing the original owner’s design right.

The remedies available for registered design reflect those of patents. The original owner can claim damages for loss or an injunction to have the infringed products destroyed. However, it must be demonstrated that the other party was aware that the design was registered.

Unregistered Design Rights

The difference between registered and unregistered design right is that the registered design right has eye appeal and the unregistered design right is purely functional design; such as a hoover.

The unregistered design right covers a vast spectrum including any aspect of the shape or configuration of the whole or part of the design. The design must be original to be protected.

The owner of the unregistered design right is the person who creates the design, with the exception of employees where the employer is the original owner and commissioned works where the individual who commissioned the work is the original owner.

The duration for an unregistered design right is a maximum of 15 years from the end of the year the design was first recorded in a design document or a product was first made from the design.

The original owner of the unregistered design has the right to make products to the design or make design documents recording the design to enable such products to be made.

If another party does either of the above acts without the owner’s permission, then they commit infringement of the right. Furthermore, the original owner is protected if another party has the design for commercial purposes or sells the design in the course of business.

The remedies are the same as copyright.

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