This chapter considers the way in which design right comes into being, whether by registration in the case of registered designs in the United Kingdom or automatically in the case of unregistered designs. It also discusses the conditions that must be satisfied for an unregistered design right to arise, as well as the procedures for applying for national registered design protection in the UK. The chapter also explains the ramifications of Brexit for design protection in the UK.
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L. Bently, B. Sherman, D. Gangjee, and P. Johnson
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L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter focuses on the unregistered Design Right as a means of protecting designs in the United Kingdom under Part III of the Copyright, Designs and Patents Act 1988. It begins by considering the subsistence of the Design Right, with emphasis on the requirement that there be a ‘design’ and exclusions to design protection by the unregistered design right. The chapter then discusses issues of ownership, duration, and infringement as well as the defences that are available in cases of infringement of unregistered designs.
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Systems of intellectual property law date back many centuries and play a very important role in the information technology field. The main forms of intellectual property law are patents, copyright and trade marks. All play important roles and are considered in this section of the book. Patents and copyright have been applied in an IT context from the early days of the computer whilst trade marks have come to assume more significance with the commercialization of the Internet and its use by major manufacturers who typically own many trade marks developed for use in the course of their activities in the physical environment. As with many areas, the connection between the real and virtual words is not exact. The application of the law of copyright to software has seldom been in doubt. It is clear that the unauthorized copying of all of a work is unlawful. What is not clear is the extent of the protection. The famous scientist Isaac Newton is quoted as saying “If I have seen further, it is because I stood on the shoulders of giants”. Most later works build to some extent on their predecessors and there is a difficult dividing line between fair and unfair use of such works. Somewhat different issues apply in relation to patents – a branch of the law which offers the strongest protection but does require that works be innovative and produce a technical effect – that they should do something. This can be difficult to assess in respect of very fast-moving technologies.
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This chapter discusses the law on designs. The underlying idea behind the law on designs is that it involves two distinct elements: an article or product and some added ingredient, a design feature, which enhances the appearance of the article. It is the design feature, the added matter, which receives legal protection, not the product itself. The chapter then deals with the five principal means available to protect the appearance of a product: UK registered design; UK unregistered design right; UK copyright; EU registered design; and EU unregistered design. Thus, a designer who wishes to acquire protection for the appearance of an article under UK and/or EU law has several options. To add to the complexity, various aspects of the design can be protected by registered designs, unregistered designs, and copyright. The outcome is that a designer could end up with several different layers of protection.
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This chapter discusses unregistered design protection which confers its own form of protection for a more limited period than is the case for other IP rights. The chapter examines the two main forms of unregistered design right: the UK unregistered design right established by Part III of the Copyright, Designs and Patents Act 1988; and the Community unregistered design right. While Community unregistered design right is closely connected to the scheme of registered design law discussed in Chapter 8, UK unregistered design right is a fully independent and distinct form of unregistered protection for designs which is unique to the UK and poses its own particular challenges. The chapter also considers in more detail the evolving and complex interaction of design protection and copyright including recent UK legislative developments.
Chapter
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter focuses on unregistered design right as a means to protect designs in the UK under Part III of the Copyright, Designs and Patents Act 1988. It begins by considering the subsistence of the UK unregistered design right, with emphasis on the requirement that there be a ‘design’ and exclusions to design protection by the unregistered design right. It then discusses issues of ownership, duration, and infringement as well as the defences available in cases of infringement of unregistered designs. The chapter concludes with a brief explanation of sui generis right involving semiconductor chips.
Chapter
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter considers the way in which design right comes into being, whether by registration in the case of registered designs in the UK and in the European Union, or automatically in the case of unregistered Community designs. It also discusses the conditions that must be satisfied for an unregistered Community design right to arise, as well as the procedures for applying for national registered design protection in the UK and in the European Union.
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All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses design protection in the UK and EU and the impact of the UK’s departure from the EU on this protection. In particular, it traces the history of industrial design protection before turning to examine in detail the registered designs and unregistered design right systems. The chapter also analyses the relationship between copyright and industrial designs, the tensions that arise from this interrelationship, and how this interface will be regulated in future under UK law.
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L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter focuses on ‘relative grounds’ for denying an application to register a trade mark as set out in section 5 of the Trade Marks Act 1994 and Article 8 of the European Union Trade Marks Regulation (EUTMR). It identifies ‘earlier trade marks’ and ‘earlier rights’ before turning to the tests which allow a prior mark to oppose the registration of a subsequent one. First, it reviews the so-called double identity ground, where an identical (later) mark is applied for, in the context of identical products. Second, it considers when likelihood of confusion may be established. Third, it surveys three situations referred to collectively as ‘dilution’, where the later mark may mentally evoke the earlier one in a way that is not confusing, yet still wrongful. It also explains the ‘advertising function’ of a trade mark, along with requirements relating to reputation and ‘due cause’. Finally, the chapter discusses relevant provisions governing unregistered trade marks, copyright, design right, and registered design right in the UK.
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This chapter discusses designs law, which is a collection of legal rights that can protect designers of products from having the appearance or shape of their products copied, or give them a monopoly over the commercial exploitation of a shape. Designs law is not about any literary or musical content recorded on a product—that will be protected by copyright. Similarly, the underlying technological ideas may be protected by a patent. In the UK, copyright in designs cannot be used to prevent designs for everyday, functional articles from being copied; only artistic designs can be protected by copyright. Design right protects non-artistic designs and registered designs, and protects designs which are new and of individual character by a monopoly right that lasts 25 years. Registered designs law has been harmonized by the European Union.
