What is design?
Not only fashion brands need design protection but also anything that relates to the visual feature of the product is “design”. It includes a distinctive logo, a pattern to decorate your goods, symbols, product shape or packaging. There is a two-fold system of protecting design rights i.e. unregistered and registered design rights.
In simple words, a registered design protects the appearance of the whole or part of your product. To register a design, it should be original and unique. A similar design must not already exist in the marketplace.
UK Unregistered Design Rights
By creating a product to the design, or producing a design document, you acquire the rights. No third party can copy your design. If they do so they will have to infringe upon your design rights.
Unregistered design rights don’t last forever. They expire within 15 years from the year the design was first recorded. Their protection connects to the shape and design of an article and does not involve any formal application procedure. This form of protection is generated upon the creation of a design document or article symbolizing the design. However, unlike registered design protection, design right is not a perfect form of protection. That is, in order to successfully pursue an alleged infringer, it is mandatory to show that the characteristics of the design in question were copied.
Unregistered design rights exist throughout the European Union as Community Unregistered Design Rights, the same amount of protection is given but only for only 3 years.
UK Registered Design Rights
Through a formal application to the UK Intellectual Property Office, registered design rights were received. The design has to be ‘new’ and show ‘individual character’, in order to qualify for protection from UKIPO. It can’t be a design or a generic mark that produces an overall different impression from other designs. Monopoly rights were granted by registered design rights. That is, only the holder of the rights has the complete right to apply and use all or part of the design.
The UK Registered design validity lasts for 25 years of protection but after every 5 years, it has to be renewed. Under the name of Registered Community, registered design rights exist throughout the European Union. Like UK Registered designs, the protection lasts for 25 years but needs to renew after every 5 years.
When Unregistered Design Rights exist then why to register for registered design rights?
The major difference between registered and unregistered design rights is all about the level of protection. Registered design rights have much better protection as compared to unregistered designs. How? Let’s see.
Let see, for example, you think another company is infringing on the design of your product if the mark is unregistered. Then in order to win against them, you have to prove that the third party has copied your design and took the idea directly from you to make their product. You only have to prove that their product is too similar to yours if your product is a registered design- regardless of whether the claimed trademark infringement design was created entirely independently or with knowledge of the design.
There are other reasons as to why registered design rights; registered designs stay much longer than unregistered designs (25 years for the former or 3 to 10 years for the latter); Unregistered design rights have a limit as they do not give you a monopoly over a design.
On the other hand, extra protection is provided by registered designs on top of trademark registration in UK rights if your logo has graphic elements.
And finally, having a registered design assists your market competitory by adding business value.
Read more about Trademark classification
Comparison of Registered Design Rights and Unregistered Design Rights
|Basis||Registered Design Rights||Unregistered Design Rights|
|How do I protect my design?||You will need to submit an application prior to your design coming onto the market||No formal registration procedure is required (or possible), it comes into existence automatically upon creation of the relevant design|
|What type of protection will I have?||Protection is given to the overall appearance of the design, excluding features dictated by technical function||Exclusive rights against anyone copying your design which includes both functional and aesthetic aspects|
|How long will I be protected?||Protection for 25 years from the date of filing, at most||15 years protection, or 10 years from when the product is first put on sale – whichever is the shortest|
|Do I need to renew?||Yes, every 5 years up to a maximum of 25 years||No|
|Originality||The design must be new, for example, not identical to any existing designs and have individual character||Must be original, for example, not similar to any existing designs|
|Protection rights||In order to enforce rights, there is no need to prove that your design was exactly similar.||You must prove your design was directly copied in order to enforce rights and to prove that you are the owner, keep all records and documentation from when you created the design.|
|What about protection in other countries?||UK protection can extend to certain countries||Protection is only available in a very small number of countries|
|Can I sell the design?||Yes, by selling the
registration or granting a license
|Yes, by selling the design right or granting a license|
Registration of design rights is done to protect them from any third party. Unregistered design rights can sometimes be difficult to prove and tend to have shorter shelf lives (which mean the length of time for which an item remains usable, fit for consumption, or saleable). Some businesses do prefer unregistered design right however, simply because registering a design can be costly and slower in comparison with the speed with which they develop new products. Under registered design rights, there is the limit for protection which needs to be renewed after a particular period of time.
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