Unregistered Design Right Notes

UNREGISTERED DESIGN RIGHT Relevant legislation: Copyright Designs & Patent Act 1988 (CDPA) WHAT IP RIGHTS ARE AVAILABLE? STEP 1: Introduction STATE: Under s213(2), design is defined as 'any aspect of the shape or configuration (whether internal or external) of the whole or part of an article'. As such, an unregistered design right will protect only a 3D object. Unregistered design right subsists automatically when either the 3D object is created or design plans for that 3D object are produced. WHY ARE THE RIGHTS AVAILABLE? STEP 2: Is the design original? STATE: Under s213(1), the design must be original, i.e. not commonplace within the EU in the design field in question. There are two aspects of originality: 1. Must be original in the copyright sense of not in itself being a copy 2. Must not be 'commonplace in a qualifying country in the design field in question' (s213(4)). In this instance, a qualifying country would be any country in the EU. In the case of Occular Sciences v Aspects Vision care [1997] it was stated that design is commonplace if "trite, common-or-garden or hackneyed". STEP 3: Is the design recorded? STATE: Under s213(6), no design right subsists unless the design is recorded in a document or article. STEP 4: Do any exclusions apply? Methods or principles of construction STATE: Under s213(3)(a), the process or operation by which a shape is produced, as opposed to the design of the shape itself, cannot be protected as an unregistered design right. Instead, such processes are the subject of patent law rather than design rights. Must fit STATE: Under s213(3)(b)(i), aspects of the design which 'must fit' with other articles so that either article may perform its function are excluded from protection as an unregistered design right. These aspects are defined as "features of the shape or configuration of an article which enable the article to be connected to, or placed in, around or against another article so that either article may perform its function". In other words, it is only the interface that is excluded from protection, i.e. bits that have to fit into, up to or around the other object. Therefore, in practice, the must fit exclusion means that other people cannot be prevented from making products which fit onto the product which has been protected. 

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