UK design right is an unregistered right which has its basis in the 1988 Copyright, Designs and Patents Act, and arises automatically on recording an original design on any medium, or by making an article to an original design.
No formal system of registration exists for UK design right. In order to enforce design right, proof that there is a design right subsisting and that it is owned by the person claiming it will be required. In order to achieve this practically, the original design should be recorded together with information concerning the designer and where and when the design was produced.
Design right lasts for a period of 15 years from the end of the calendar year in which the design was first recorded. If the design is incorporated in an article sold or hired within the first 5 years of the design right existing, then design right lasts for 10 years from the date of the first sale or hire. However, the owner of the design right can only prevent copying up to the beginning of the first 5 years of the design right term. For the remaining five year period, third parties are entitled to a license of right from the design right holder, and so copying of the design cannot be prevented. A royalty however will be due for any copying occurring in this period.
Design right is owned in the first instance by the person making the design, unless it is made in the course of employment or by commission, in which case the design right is normally owned by the employer or commissioner.
Design right can be infringed if a third party copies a design in which design right exists. If a third party independently arrives at exactly the same design, without copying, then no infringement of design right exists.
Limitations to design right:
- It does not protect features of an article which are dependent upon the form of another article to which the aforementioned article is intended to form an integral part.
- It does not protect a decoration applied to the surface of an article.
- It only protects original designs made after 01 August 1989.
- It does not protect the features of an article which, when placed in or around another article, allow the latter article to perform its function.
- It applies only in the UK