What are design rights?
Design rights are rights in how a product looks. The product can be either two or three-dimensional.
How do design rights arise?
'Unregistered' design rights arise automatically on the creation of the product.
Provided that the design is new and original you can also apply for it to be 'registered' in the UK, EU or internationally.
What do design rights do?
Design rights prevent others from copying them.
Registering a design means that no one else can use it, even if they claim to have come up with the same design independently.
How long do design rights last?
If a registered design is granted it will last for up to 25 years but needs to be renewed every 5 years.
Unregistered design rights last for 15 years in the UK, and 3 years in the EU, from the end of the first year that the product is first marketed.
How can I protect my design rights?
You can apply to register your design online at the Intellectual Property Office (IPO) website or by filling in the appropriate forms and sending your application by post. The fee is £60 for the initial application and £40 per design in any multiple application if you apply by post and £50 for the initial application for one design if you apply online.
When you share your valuable confidential information, including registered and unregistered design rights, with another business, consider using an appropriate confidentiality agreement. Depending on whether one or both parties are sharing confidential information, make a Mutual confidentiality agreement or a One-way confidentiality agreement.
Make sure your agreements with independent consultants have the necessary provisions relating to intellectual property (IP) created in the course of working for you.
If a party breaches your design rights, consider issuing a Cease and desist letter to protect your IP.
For specific information on protecting your design rights and other intellectual property overseas, see the Government’s guidance.
Can my design be registered abroad?
As with any IP right, registering your design in the UK does not grant protection abroad. If you want to register your design in other countries, you can either:
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apply for a Registered Community Design (RCD) covering the whole of the EU
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apply directly to the IP offices of most major countries around the world. You can use the World Intellectual Property Organization (WIPO) Directory to find the country and corresponding office
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apply using the Hague System where you can apply to several different countries or territories at the same time, using only one application
If you have an unregistered design right, you may still be able to get protection. For example, using the Unregistered Community Design (UCD) right which covers the entire EU. For more information, read Protecting intellectual property overseas.
What impact did Brexit have on RCDs?
Since 1 January 2021, new RCDs are protected in the EU, but not in the UK. However, all pre-existing RCDs continue to be protected in the UK through the registration of ‘comparable’ design rights at the IPO. This process was automatic, so any existing RCDs were automatically copied across into UK-registered design rights.
The departure from the EU has no impact on the protection and validity of UK-registered design rights within the UK.
‘Comparable’ design rights
Under the Withdrawal Agreement, the IPO created ‘comparable’ UK design rights for every registered EU design right.
These ‘comparable’ design rights are:
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identical to the original RCD
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fully independent UK design rights (ie it can be assigned, challenged, licensed or renewed separately from the original international (EU) design)
Owners of RCDs did not need to file a new application or pay any application fees for the ‘comparable’ design rights.
For more information, read the Government’s guidance.
UK Address for service
Applicants for new UK design rights will require a UK, Gibraltar or the Channel Islands address before their application will be considered by the IPO.
Owners of ‘comparable’ design rights are not required to provide such a UK address for 3 years, starting from 1 January 2021. From 1 January 2024, the IPO will require a UK, Gibraltar or Channel Islands address for service where new contentious proceedings are brought. For more information, visit the Government’s guidance.
What impact did Brexit have on UCDs?
From 1 January 2021, UCDs are no longer valid in the UK, instead, these rights have been immediately and automatically replaced by UK rights (as continuing UK unregistered designs). Such rights continue to be protected in the UK for the remainder of the three-year term attached to them.
Supplementary unregistered design
To protect UCDs, a UK ‘supplementary unregistered design’ (SUD) has been created. This right will ensure that the full range of design protection provided in the UK before 1 January 2021 will remain available.
SUDs offer protection similar to the protection offered by UCDs, however, this protection will not be extended to the EU. SUDs mirror UCDs by providing UK protection for both three and two-dimensional designs for 3 years.
A SUD is established by first disclosure (ie making the design available to the public in such a way that the interested parties can reasonably be aware of the design) in the UK (not first disclosure in the EU). However, it may destroy the novelty in that design, should the owner of a SUD later seek to claim UK unregistered rights. Similarly, first disclosure in the UK may not establish a UCD and could destroy the novelty in that design, should the owner later seek to claim EU unregistered rights.
For more information, see the Government's guidance.
