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First a quick quiz to see whether you should read this article.
Question 1
Can you explain the differences between registered designs, UK unregistered design rights, Community unregistered design rights, supplementary unregistered design right and artistic copyright?
A: Yes thanks;
B: I sort of know some of this but would struggle to fully explain it to someone else; or
C: I recognise the individual words but they do not make sense when you string them together like this!
I told you it was a quick quiz.
Answers
Mostly A’s : please submit your input to the consultation using this link, noting the consultation closes on 25 March 2022, and send your CV to aat@aathornton.com as we are always looking to recruit talented staff.
Mostly B’s or C’s : you are not alone – read on.
Background to the consultation
The UK IPO is taking the opportunity provided by Brexit to review the complex web of overlapping rights relating to designs and has launched a call for views from interested parties. This is not the first time that a review has been merited – designs seem to defy the fundamental stability of the other key registered IP rights which have developed over time around the same core principles. The last major review of the position in the UK resulted in the Copyright, Designs and Patent Act 1988 which curtailed the extensive period of protection offered by copyright for utilitarian designs and introduced UK unregistered design rights.
The departure of the UK from the EU has revived the UK registered design system. There was a significant increase in the number of UK design filing in 2021, the year following Brexit, with the total number of filings increasing from around 31,000 to over 72,000.
Content of the consultation
The consultation asks a number of questions about the registered design process which is, at the moment, quick and easy. Essentially the UK IPO offers a repository for claims to design rights with no meaningful examination process – this keeps the costs down and results in the quick grant of registrations but it means that a registration cannot be assumed to be valid and that shifts the burden onto the right owner if they want to bring enforcement proceedings. This contrasts with the examination system that was in place prior to the European design system where there was some attempt to examine applications against existing registrations. However, like a number of other areas of UK IPO practice, it was necessary to “dumb down” the UK system to fit within the framework offered by the EU IPO. Once the UK joined the EU design system, it could not sensibly offer a more complicated application system or applicants would just seek protection via the European system and avoid UK rights. But is this simplified system what applicants want from a post-Brexit registered design system?
Questions are also asked about the different and overlapping unregistered design rights that are available, but these questions rightly start by asking whether it is wrong to have overlapping rights. History has shown us that trying to simplify the system can leave holes and perhaps some overlap is needed.
The digital transformation of society is also referenced in a call for views about whether the current system caters for the digital environment and future technologies.
The final question in the consultation is perhaps the most important as it touches on enforcement – no one obtains design rights for the sake of it – these rights are tools to help develop and protect the right holders. Any steps taken to engage with designers to educate them about this complex area of law are likely to be wasted if those designers come to the view that there is no effective way of enforcing those rights.
If you want help from experts to express your views regarding the consultation, or you have any questions about the current design right system in the UK or EU, please contact Ian Gill.
Category: Latest Insights | Author: Ian Gill | Published: | Read more
