This article relates to the design rights created in the UK only.
Design rights automatically exist in original industrial designs. Design right protection begins immediately and most usually lasts for ten years from the 1 January in the year following the first sale of the item concerned.
For the initial five years, a monopoly right subsists and competitors can be completely prevented from copying and selling your product. For the next five years your competitors must pay a royalty at a reasonable rate usually of between 5% and 7% of the sale price of the goods.
Design right can subsist in the completed item or in components of any completed item, or parts of items.
The range of products to which design right applies is infinite, so for example, a new chair, telephone, car, space rocket or screwdriver will all have design right protection. Exceptions to this are very limited.
Proving copying of a design right is relatively easy. Mathematical analysis of the proportions and dimensions of the original product, if reverse engineered, will usually be sufficient.
Unregistered design right is particularly useful for businesses that update their designs regularly, for example those businesses that bring in new ranges each season, or every few years.
Items such as furniture, kitchenware or clothing will all be protected.
Can design right be enhanced?
The answer to this is “yes”, by registering a design right, an owner can extend the monopoly protection period from five years to twenty five years. An owner can also protect itself not only from those people who copy its ideas but those who create original ideas that are extremely similar.
The cost of registration is low. Registration of designs is useful where a product life is likely to be longer than five years, such as in the automotive industry.
Enforcing design rights can be applied by way of interlocutory injunction. It is so straight forward to determine whether design right infringement has occurred that litigation funding is readily available in this area.
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