Design Rights Solicitor – Design Rights are a type of intellectual property.
They add considerable value to businesses but have historically been overlooked by those seeking to protect or commercialise their assets.
A design rights solicitor specialises in the interpretation and application of design rights law and helps ensure your assets are effectively monetised and safeguarded.
What is Design Right?
In an increasingly aesthetic world, many businesses now invest heavily in creating the right ‘look’ for their products.
Take Apple, for example – it painstakingly designs everything from its products to its user interfaces and shop fronts to achieve the desired ‘look and feel’. In doing so, it has succeeded in creating designs which are both attractive to the consumer and synonymous with its brand.
The protection of such designs is crucial in maintaining brand identity and preventing dilution through unauthorised use by third parties.
Broadly speaking, design rights protect the visual appearance of the whole or part of a product. This includes shape, configuration, lines, contours, colours and texture.
There are different types of design rights available in the UK, which vary in the nature and extent of protection granted. Design rights do not protect the functionality of a product, which is the realm of patent protection.
Design rights often operate in tandem with other intellectual property rights, protecting assets in a complementary but distinct way. You may, for example, fail in a claim for copyright infringement but succeed in one for design right infringement, in respect of the same product.
Whilst intangible, design rights can be commercialised in the same way as other property. They can, for example, be assigned or licensed, often (but not always) in conjunction with other intellectual property rights. Design rights solicitors will assist you in managing, protecting and commercialising those assets protected by design rights.
What are the different types of design right?
The UK has 2 types of design rights – registered and unregistered. These are separate, standalone rights.
Registered Design Rights
To be eligible for registration, a design must be ‘new’ and have ‘individual character’.
Registration is a straightforward and comparatively inexpensive process. Once obtained, registration lasts for up to 25 years, provided it is renewed every 5 years.
Design rights solicitors will advise on whether a design is capable of registration, prepare and file the registration documentation and manage your portfolio.
A registered design is a monopoly right meaning any third party using it without permission can be sued for infringement. It is no defence for a third party to claim that they did not copy the registered design; if it is found to be too similar, they are liable.
Unregistered Design Rights
The UK provides 2 types of unregistered design rights.
The first right (referred to as UK Unregistered Design Right, or UDR) protects the shape and configuration of a 3-dimensional product; the arrangement of its parts. To benefit from protection, a design must not be commonplace.
Protection lasts for 10 years after the design was first sold or 15 years after it was created. Third parties are permitted to use the design under licence during the final 5 years of protection.
The second right (referred to as Supplementary Unregistered Design, or SUD) protects the overall appearance of a design which is new and has individual character.
SUD is intended to provide fast, short-term protection for designs which are not covered by UDR, and where registration would not be cost-effective or achieved quickly enough. SUD protects both 2-dimensional and 3-dimensional designs including their shape, texture and elements of surface decoration.
This type of design right is popular with fashion businesses whose products may not qualify for protection from UDR and where trends are seasonal. SUD lasts for 3 years.
Unregistered design rights do not give a monopoly. They only prevent third parties from copying; if a similar design was created independently, there is no infringement.
UDR and SUD arise automatically upon creation. It is, however, important to always keep a comprehensive record of when a design was created – if a third party accused of infringement denies copying, the creation time can be crucial.
Design rights are territorial and UK law only provides protection within the UK. Design rights solicitors often have multi-jurisdictional experience and can advise on the regimes of other countries in which you operate.
What can design right protect?
The different types of design rights can safeguard an array of business assets, including –
- Business Logos
- Product Design
- User Interfaces
- Computer Icons
What do design rights solicitors do?
The law relating to design rights is vast and complex. Design rights solicitors specialise in establishing which design right applies to a particular asset and advising on the extent, nature and duration of the relevant rights.
Where registration is desired, a design rights solicitor will work with you to ensure a proposed design meets registration criteria and prepare and file the relevant documentation.
Design rights solicitors will also assist in the commercialisation of your designs by negotiating contracts with third parties wishing to utilise them, and pursue any third party who does so without your consent.
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