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If you’ve developed a product, or you’re even selling a product on the market at present, you may have unregistered design rights that protect the shape and appearance of the product.
Unregistered designs protect the way a product looks. This can be its shape, or appearance including surface decoration. When we refer to it being a product, it needn’t be a 3D object, it could also be a 2D design such as an icon on your new software, or the layout of your software application.
In order to qualify for unregistered design rights, the shape and appearance of your product needs to be new. Essentially, no one should have made something the same as your product before you.
If it meets those requirements then you may have an unregistered design right that gives you the right to prevent others directly copying your design. However, there are some limitations.
You have to show that the design was copied. This isn’t always easy. How can you prove that someone didn’t come up with their design independently? Registered designs don’t have this limitation and they are therefore always worthwhile considering if you’ve developed a unique looking product.
You have to be able to show that the design creates a different overall impression on the informed user. This is the legal test, and don’t get too bogged down by what this means in practice. Essentially, if someone makes something the same or pretty much the same as your product then you might want to seek advice from a lawyer to consider your options.
Within the European Union there is an unregistered design right. This lasts three years from when you first disclose your design, for example, by selling or advertising. In the UK, an unregistered design right exists for 10 years from when you first disclose your design, or 15 years from when the design was first created, which ever period ends earlier. But in contrast European community registered designs and UK registered designs both last for 25 years. The extra length of protection provided by a registered design, and the increased certainty they provide over your ownership of the design mean that it is usually best not to solely rely upon your unregistered rights.
Answer last updated: 17 Jan 2018
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