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Unregistered Design Rights In the United Kingdom there and under the European Community Design is an unregistered right called a “Design Right” that relates to features of shape or configuration and covers aesthetic or functional designs. This note deasls primarily with UK Design Rights but the European Design Rights although not the same are very similar. The reference to articles being made available for sale or hire is to their being made so available anywhere in the world by or with the licence of the design right owner. In the UK a Design right does not subsist in (a) a method or principle of construction, (b) features of shape or configuration of an article which a. enable the article to be connected to, or placed in, around or against, another article so that either article may perform its function, (so called “must fit” features”) or b. are dependent upon the appearance of another article of which the article is intended by the designer to form an integral part, (so called “must match” features) or (c) surface decoration. The designer is the first owner of any design right in a design which is not created in pursuance of a commission or in the course of employment. Where a design is created in pursuance of a commission, the person commissioning the design is the first owner of any design right in it. Where a design is created by an employee in the course of his employment, his employer is the first owner of any design right in the design. If a design qualifies for design right protection by virtue of first marketing of articles made to the design in the UK, (see below) the latter stated rules do not apply, and the person by whom the articles in question are marketed is the first owner of the design right. A design qualifies for design right protection if the designer is a “qualifying individual” or, in the case of a computer-generated design, a “qualifying person”. A joint design to which this qualifies for design right protection if any of the designers is a qualifying individual or, as the case may be, a qualifying person. Where a joint design qualifies for design right protection under this section, only those designers who are qualifying individuals or qualifying persons are entitled to design right under section 215(1) (first ownership of design right: entitlement of designer). Where a design is commissioned or the designer is employed a design only qualifies for design right protection if it is created in pursuance of a commission from, or in the course of employment with, a “qualifying person”. In the case of a joint commission or joint employment a design qualifies for design right protection if any of the commissioners or employers is a qualifying person. Where a design which is jointly commissioned or created in the course of joint employment qualifies for design right protection, only those commissioners or employers who are “qualifying persons” are entitled to first ownership of design right. “qualifying individual” means a citizen or subject of, or an individual habitually resident in, a qualifying country; and “qualifying person” means a qualifying individual or a body corporate or other body having legal personality which— (a) is formed under the law of a part of the United Kingdom or another qualifying country, and (b) has in any qualifying country a place of business at which substantial business activity is carried on. (a) “qualifying country” means Isle Of Man, Channel Islands and British Colonies (as set out by the Queen in an Order in Council), or any Country (as set out by the Queen in an Order in Council), British Colonies or any other Country offering reciprocal rights in their country to British Citizens (as set out by the Queen in an Order in Council), or another member State of the European Economic Community. A design that does not qualify for design right protection by reference to designer, commissioner, or employer being a “qualified person” may nevertheless qualify for design right protection if the first marketing of articles made to the design— (b) is by a qualifying person who is exclusively authorised to put such articles on the market in the United Kingdom, and (c) takes place in the United Kingdom, another country to which this provision extends (Isle Of Man, Channel Islands and British Colonies as set out by the Queen in an Order in Council), or any Country (as set out by the Queen in an Order in Council), British Colonies or any other Country offering reciprocal rights in their country to British Citizens (as set out by the Queen in an Order in Council), or another member State of the European Economic Community. Design right subsists in a design only if the design qualifies for design right protection by reference to — (a) the designer or the person by whom the design was commissioned or the designer employed (b) the person by whom and country in which articles made to the design were first marketed. Design right expires— (a) fifteen years from the end of the calendar year in which the design was first recorded in a design document or an article was first made to the design, whichever first occurred, or (b) if articles made to the design are made available for sale or hire within five years from the end of that calendar year, ten years from the end of the calendar year in which that first occurred. Design Rights can be assigned to another person or company and that person or Company need not be a qualified person. Infringement of Copyright, Registered Designs, & Design Rights To prove infringement of Copyright or a Design Right, you have to show that copying has occurred. You do not have to show copying to succeed in suing under a Registered Design; it is sufficient that the alleged infringement is similar to the protected design. Industrially exploited Designs These are designs that have been exploited by applying the design to more than 50 articles. There are specific provisions under the present law for industrially exploited designs. Designs created before 1st August 1989 are treated differently than those created after 1st August 1989. Prior to the 1st August 1989, aesthetic designs that were not functional designs (i.e. those whose shape is dictated by the function the article performed) had a maximum period of copyright protection of 15 years, and therefore expired on 1st August 2004.This was because of a provision that had the effect that if a design was registerable as a Registered Design but was not so registered the maximum life corresponded to that which applied to Registered Designs (15 years). However for pre-1989 designs where copyright in an "artistic work" (which in other circumstances would have a life of 70 years) is industrially applied by making more than 50 articles (for example, applying a picture of a landscape on a lampshade) the period of copyright protection is curtailed. Now, after 25 years from first marketing articles in the UK or elsewhere, the manufacture of articles in the UK no longer infringes the copyright in the design. This provision does not apply to non-functional purely aesthetic designs where the copyright period for these was 15 years. Also, articles that are "printed matter primarily of an artistic or literary character” (such as wallpaper, book covers, dress making patterns) are specifically excluded from these provisions, so copyright subsists in these types of articles for 70 years from the death of the author. Industrially applied Designs created after 1st August 1989 If an artistic work is regarded as a "design document" and is exploited by making one or more articles, then, providing the design is for anything other than an artistic work or a typeface, it will not be an infringement of copyright in the "design document" to make articles to the design. In other words, copyright will not extend to articles, but one could still infringe an unregistered Design Right or a Registered Design by making or copying articles. Ironically, one could still infringe copyright in the document by copying or reproducing the document if such copies are not for the purpose of making further articles. It is possible to file a single application to register a design throughout the European Community countries. For further information please click here.
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Central England Patent & Trademark Attorneys Limited Chartered Patent Attorneys, European Patent Attorneys, and British & European Trade Mark Attorneys. Registered in England Company No 7930428
© Central England Patent & Trademark Attorneys Ltd 2010.
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