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IP Cases & Commentary – Details

25 March 2010

Registered Designs and Design Rights

Paul Price

What is a registered design/design right?

A registered design is a monopoly right which is granted by a Designs Registry on the basis of a registered design application and protects the visual appearance of the design depicted in the application. The protected design comprises the 3-D or 2-D features as depicted in the application, and it is their visual appearance that is protected and not any underlying technology that might be embodied in any product to which the visual features are applied. If you want to protect the underlying technology, you will need to file a patent application. There is also a form of intellectual property right called design right or unregistered design right, which as the name implies does not require any registration procedure in order to protect a particular design. It comes into existence (or “subsists”) automatically when the design is created and can exist in addition to any registered design that you obtain for the design but is generally thought of as being a less useful form of protection because of its shorter duration and because of the need to prove that the competitor had knowledge of your design when the competitor was designing their allegedly-infringing product. This “knowledge” requirement does not apply to a registered design, because a registered design is a monopoly right and infringement is simply determined by comparing the registered design with the competitor’s allegedly-infringing design. Thus, a registered design is optional but can be very useful, although it incurs some cost as it needs to be applied for; whereas a design right is automatic but free of charge, although it can be difficult to enforce against a competitor because of the requirement to show that the competitor had knowledge of your design.

Who owns a registered design/design right?

For both a registered design and for unregistered design right, the starting position over ownership is that ownership resides with the designer. UK design law automatically transfers ownership to any entity that commissioned the design or, if the design was not commissioned, to the company that employed the designer. European design law will usually automatically transfer ownership to the designer’s employing company, but does not automatically transfer ownership to any commissioning entity. Thus, an assignment of ownership may be necessary.

Who can apply for a registered design?

A registered design application can be filed by the owner of the design, which starts off as being the designer, although ownership may have automatically passed to the designer’s employer or to the person who commissioned the design, or may have been assigned to some other entity. Particular care should be taken if, for example, a company has developed a new brand and has used an outside design agency to produce the design elements for the new brand, such as new logos, new artwork, new packaging etc. All of these elements are potentially suitable for being protected by means of registered designs, but the company will need to review the contract with the design agency to ensure that the ownership of the intellectual property has been passed over to the company. If necessary, specific assignment documentation should be drawn up and executed before the registered design applications are filed, in order to underpin or substantiate the fact that the company is being named as the applicant (owner) on the application forms.

What can and cannot be the subject of a registered design?

Under the modern design law that applies in the UK and many European countries, and also to Community registered design applications, there is a broad definition of what is registrable as a design. It is possible to protect a 3-D visual appearance, such as the shape of a new product. It is also possible to protect 2-D aspects of visual appearance, such as any 2-D surface decoration applied to the product. The registered design may be concerned with the whole of the product, or just part of the product. The modern law applies a broad definition to what is a "product" which includes, in addition to the usual industrial items, less obvious possibilities such as handicraft items (e.g. one-off sculptures), packaging (such as printed food cartons), the get-up of the product, graphic symbols (such as an icon on a computer screen, or a cartoon character) and typographic typefaces. Because a "graphic symbol" is classified as a "product" the design of which can be protected by means of a registered design application, it is generally speaking the case that anything visual may be protected by means of a registered design. To be registrable, the design must be new, and must also have "individual character" which is a subjective test meaning that the design must produce a different overall impression on the "informed user" compared with existing designs. Under UK and European design law, novelty and individual character are generally speaking assessed on a worldwide basis against existing publicly-known designs.

In which countries can a registered design be applied for?

A registered design application can be filed in most countries around the world. There are also some “regional” types of application which cover a region and not just one country. For example, a Community registered design application covers all of the countries of the European Union. For a UK company or individual, the starting point would be to consider filing a UK registered design application or a Community registered design application, preferably before the design has been disclosed into the public domain, so as not to have to make use of the "12-month grace period" that allows a designer or associated company still validly to file a UK or Community registered design application up to 12 months after public disclosure first occurred. After the first application has been filed, the relevant international convention called the Paris Convention permits the first (e.g. UK or Community) registered design application to be used as a springboard for filing corresponding foreign applications elsewhere around the world for the design in question as long as the foreign applications are filed within 6 months of the first filing date. If the UK or Community registered design application was filed making use of the 12-month grace period, then it may not be possible to file valid registered design applications elsewhere around the world as many countries do not have a grace period under their national design law. It is for this reason that it is preferable not to make use of the grace period when filing the UK or Community registered design application as the first application for the design in question.

What are the costs associated with a registered design?

The cost at each stage will usually comprise a combination of official fees, the service charge of the design attorney and disbursements such as the charge for a specialist outside draughtsmen firm preparing formal drawings for incorporation in the application or, sometimes, the charge of a specialist outside solicitor for advising on and drawing up an assignment to transfer ownership of the designs in question from, for example, an outside designer to the company that wishes to file the registered design application in their own name. For a UK or Community registered design application being filed as a first application, the initial filing cost is likely to comprise most of the elements just mentioned and will depend in particular on the number of separate designs to be included in the registered design application. After the application has been filed, the so-called post-filing prosecution cost through to allowance is likely to be small because most applications do not receive any official objection and proceed through to allowance after just a couple of months, so the post-filing prosecution cost is likely to be only a small service charge of the design attorney for forwarding the Certificate of Registration for the or each design that was contained in the application as filed. After registration has occurred, a UK or Community registered design will usually only incur cost when paying the official renewal fee at five-year intervals to continue to keep the registered design in force. If a third party challenges validity and applies to have the registered design revoked, then cost would be incurred in defending against the revocation action.

When should a registered design be applied for rather than a patent?

You might want to do this if for example a new product embodies no new technological innovation for which you might wish to file a patent application and the new product simply has a commercially important visual feature or overall appearance that is new and different to existing designs in a non-trivial way. Of course, a new product might incorporate both new technology and a new visual appearance, so you might want to file both a patent application and a registered design application. If so, the new product should be kept confidential until the applications have been filed, because whilst registered design law in the UK and Europe provides a 12-month grace period permitting filing after the first disclosure into the public domain there is no grace period provided by UK or European patent law.

How long does it take to get a registered design application granted?

If the application has been carefully thought through and carefully prepared for filing, such that no formalities objections are raised by the UK or European Designs Registry, then you can expect the application to be allowed in just a couple of months, which compares favourably with the several years that a patent application typically takes to reach the grant stage. When a registered design is allowed, it is usually published at the same time so that the public can see the design. This could be termed publication upon allowance. If for commercial reasons you do not want this to happen, it is possible to file the UK or Community registered design application requesting deferred publication which can defer publication for up to 12 months (UK) or 30 months (Community) so that even when the application is allowed the design will not be published immediately and you can control when publication occurs so that you can time it, for example, to occur when the product is launched onto the market. The disadvantage of the deferred publication route is that it introduces extra cost into the procedure.

How long does a registered design remain in force?

A UK or Community registered design can be kept in force for a maximum of 25 years by paying official renewal fees on the 5th, 10th, 15th and 20th anniversaries of the filing date.

What if I have already displayed the design?

You can still file a valid UK or Community registered design application by making use of the 12-month grace period provided under UK and European design law. Specifically, in relation to any public disclosure originating from the designer or an associated entity such as his or her employer, the application should be filed within 12 months of the first public disclosure. It is preferable not to make use of the grace period because it restricts the options for then using the UK or Community registered design application as the basis for filing corresponding foreign registered design applications elsewhere around the world as many foreign countries do not have a grace period under their national registered design laws.

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