1. Copyright

Copyright protects the form of expression of ideas and not the ideas themselves as such. Copyright law rewards an author for the creation of an original work, that is, a work where the author has expended independent effort to create the work.

While copyright offers certain protection in relation to artistic works, which could include engineering and design drawings, it may not provide sufficient protection for a designer’s purposes. This is because the protection relates to the copying of the design and not to the production of the article the subject of the design.  While copyright law is intended to prevent copying it does not apply if a similar or identical work already exists provided it has not been copied.

Copyright lasts for a set period, most often the life of the author plus 70 years from the end of the calendar year of his death. No formalities need to be observed in the UK for a work to receive copyright protection; protection automatically applies to all works recorded in any form provided that they meet certain requirements.

2. Design Rights

The owner of design right in a design has the exclusive right to reproduce the design for commercial purposes by making either:

(a) articles to that design; or

(b) a design document recording the design for the purpose of enabling such articles to be made (such as an engineering drawing).

Infringement occurs when a person, without the permission does or authorises another to do anything which is the exclusive right of the design right owner. "Commercial purpose" is defined as an act being done with a view to the article being sold or hired in the course of a business.

The scope of design right protection is wide and extends to "any aspect of the shape or configuration of the whole or part of an article". A design must be original to qualify for protection and a design right cannot subsist until either the design has been recorded in a design document or, an article has been made to the design.

Design right lasts for the lesser of:

(a) 15 years from the end of the calendar year when the design was first recorded in a design document or (if earlier) from when an article was first made to the design; or

(b) ten years from the end of the calendar year when articles made to the design were first made available for sale or hire.

Registration of design right is not required, but the right does not exist until the design has been recorded in a design document or an article has been made to the design (see above). Designers should sign and date their design documents. Records should be kept of the design document and the design process, and the date of first marketing of articles made to the design should also be recorded. These will be needed in an infringement action to prove the date from which the right runs and subsists.

3. Registered Designs

The essential features of registered designs are:

(a) Registered designs can protect both three-dimensional and two-dimensional designs and can be a one-off design. The design is protected across all sectors and is not limited to the product to which it was originally applied.

(b) Parts of articles can be protected as designs, provided that they are visible in normal use.

(c) The design must be new - an identical or very similar design must not have been disclosed anywhere in the world prior to the application. However, the designer has a 12-month grace period after disclosure in which to file his application for a design.

(d) The design must have "individual character" - it must give a different overall impression from previous designs.

(e) Protection can last for 25 years, and the procedure for registration is relatively low-cost and quick, making it an attractive form of protection.

The principal reasons for registering a design are:

(a) A registered design confers a 25-year monopoly right in the design.

(b) Registration gives the exclusive right to make articles incorporating the design, allowing the owner to sue for infringement even where the defendant did not copy the design.

(c) The process of obtaining a registered design is relatively short and inexpensive when compared, for example, with obtaining a patent.

(d) Registration indicates that the owner has incurred time and expense in protecting the design, which serves as a warning to third parties that the design is valued. From a commercial point of view, having a registration may help enhance up the reputation and goodwill relating to the product concerned, particularly when used in conjunction with a strong trade mark.

This article contains general information only. Nothing in these pages constitutes legal advice. You should consult a suitably qualified lawyer on any specific legal matter.