In an over-saturated market, you’ll need a stellar design to ensure you catch your customer’s eye. Aside from making a great first impression, designs can evoke emotional responses, improve business memorability, and create meaningful experiences.
However, innovative and striking designs can also inspire a wave of copycats eager to replicate your success. That’s why many entrepreneurs choose to protect their intellectual property and register their designs.
In this article, we’ll cover the differences between unregistered vs registered design rights in the UK and how these may affect your protection.
What are design rights?
Before we delve into the difference between design rights, let’s explore the concept. Design rights, registered or unregistered, are an integral part of intellectual property law that provide designers or their employers with protection against the use of their design by an unauthorised third party. The protection offered varies whether a design is registered or unregistered, but generally speaking the appearance of an article may be protected. The function of these articles is usually excluded because this aspect is protected by patents.
Designs can be protected across a number of novel features of appearance, including physical shape and configuration. Surface decoration however can only be protected in the UK by registered designs. Some examples of protectable designs include computer icons, video game characters, digital media products, and three-dimensional or two-dimensional shapes.
Why do people protect their designs?
Individuals choose to protect their designs to avoid others copying their intellectual property. For a limited period of time, design registration prohibits others from making, offering, importing, exporting, using, or selling a product with the same design.
By safeguarding the creativity of their design, entrepreneurs can monetise their innovations and build a strong brand identity. Plus, if another company chooses to replicate their unique design, owners can pursue legal action.
The difference between unregistered vs registered designs
In the UK, new designs may be protected by registered design rights and/or unregistered design rights. Both can provide protection against copying; however registered designs provide protection against a third party using a similar design, whether or not the third part design was copied or the similarities are coincidental. The scope of protection and the process and eligibility for acquiring these rights vary, so being aware of the difference between design rights is crucial.
Here’s how registered vs unregistered design rights differ:
Protection process
UK unregistered design protection occurs automatically once the design is first recorded or disclosed to the public anywhere in the world, provided the employer, designer or first marketer is a qualifying person, – there is no need for an application or registration process. We recommend maintaining a record of when design drawings are made, as well as evidence of when the design is first made commercially available.
Registered designs require a formal application to the UK Intellectual Property Office (UKIPO) with a description and representation of the design.
Scope of protection
UK registered designs receive a broader scope of protection. Protection covers the whole or partial design of a product, including features like lines, contours, colours, shapes, materials, ornamentation, and even textures. The scope of protection can include packaging, get-up, graphic symbols, typographic typeface, and component parts of complex products. Registered design rights are a monopoly right.
UK unregistered designs generally protect the shape or configuration of whole or part of an article, and only protect against copying. Designs that are genuinely independently created (not copied) and just happen to look the same as earlier designs fall outside the scope of design protection.
Length of protection
UK unregistered designs are only protected for a maximum of 15 years from the end of the year when the design was first recorded or an article was made to the design or, if shorter, 10 years from the end of the year when the article was first publicly disclosed. Registered designs benefit from a longer period of protection of up to 25 years from the registration date, subject to renewal fees every 5 years. Registered designs also benefit from a 12 month grace period in which applications for registration can be validly filed after public disclosure.
Renewal process
UK registered designs must be renewed every 5 years and maintenance fees must be submitted to the IPO for a maximum term of 25 years from the registration date. Unregistered designs are non-renewable.
Protection rights
Registered design rights are monopoly rights that provide owners with the exclusive rights to use, sell, and licence their designs. They can also prevent others from making use of their designs which give the same overall impression as a registration by pursuing legal action. Unregistered design owners can only prevent direct copies of their designs; however, legal enforcement of these rights is more challenging as it must be proven there has been copying by an alleged infringer.
How to register a design right in the UK
To register a design right in the UK, entrepreneurs must ensure the design is new and has individual character. Moreover, designs cannot be solely dictated by the product’s technical function. Any disclosure of the design prior to the registration must not be prejudicial or must have been made in a 12-month grace period before the registration.
Applicants must submit the relevant paperwork to the IPO alongside a filing fee. For a single application, the fee is £50 however this increases for multiple applications. In the UK, registered design applications are not subject to a prior art search and there is assumed novelty. However, prior art searches may become necessary in later validity proceedings.
How long is your registered design protected for?
Once a design is registered, the owner must submit a renewal form alongside a £70 payment on the fifth anniversary of the design registration. From there, they can renew their design every five years, for a maximum of 25 years. Design renewal fees increase every five years and late submissions are penalised at an additional £24 per month.
