Securing design rights is essential for safeguarding the intellectual property of your business. Designers, small business owners, or truly anyone operating in creative sectors in the UK market, where both registered and unregistered protections are available, should know the following information in order to fight against design infringement.
What are Design Rights?
In the UK, there are two kinds of design rights that protect the various aspects of your product. Whether that is the form of a chair, or the packaging of a tech device, or a fashion item. This is very distinct from trademarks, which protect logos or names and also distinct from patents, which protect how products work.
Key take away? Design rights focus solely on how things look.
The two types of design rights are:
Registered Design Rights:
- These provide exclusive rights for your design for up to 25 years (with renewals every 5) and offer the most protection, making it easier to enforce against potential infringers, if need be.
- This type of long-term protection is essential for any type of company whose designs are an important part of their branding and/or marketing strategy.
Unregistered Design Rights:
- These offer an automatic protection without registration, meaning there is no additional work to be done.
- They protect only the shape and configuration of 3D objects for up to 15 years.
- However, they are quite limited in scope and duration and are oftentimes more difficult to enforce.
- This type of protection may be enough in industries like fast fashion, where products have a much shorter life cycle.
Brexit’s Impact on Design Rights
Following Brexit, there have been numerous adjustments to design rights in the UK.
Prior to December 31st 2020, the UK acknowledged, on top of Registered and Unregistered Design Rights, protections across the EU, like Registered Community Designs (RCDs) and Unregistered Community Designs (UCDs).
However, post-Brexit, the holders of existing RCDs and existing international design registrations automatically became holders of the comparable UK-specific rights: Re-Registered Designs and Re-Registered International Designs.
Thus, existing UCD holders also possessed Continuing Unregistered Designs (CUDs), granting the same protection in the UK for the remaining term of its original three years. Moreover, a new type of design protection was created, named Supplementary Unregistered Design (SUD). SUDs are comparable to UCDs by protecting two-dimensional and three-dimensional designs for a period of three years.
SUDs are still in force today, however, there remain no more CUDs, as their terms have expired by the end of 2023.
The Importance of Registration
So… why register?
When you register your design creation, it provides stronger protection for your work. It helps deter others from replicating it unlawfully by making enforcement more straightforward – facilitating the acquirement of compensation and strengthening legal actions against those who breach your rights.
For startups, registering designs at an early stage can make the world of a difference in later stages. Although it takes additional effort and may require consulting a legal professional, the benefits greatly outweigh the cost. This is especially true when pitching to potential investors, as having these protections can significantly increase the valuation of your business.
Relying on unregistered design rights can make your business vulnerable to hopeless design infringement in an instant. A common example is when a fashion startup loses to a big corporation whose successfully copied their unregistered clothing design and it costs the business their entire capital to participate in legal battles.
Companies like Shein and Steve Madden have become notorious for this type of practice, as they do have enough capital to fight off allegations. One small-business owner, Cassey Ho, has been extremely verbal about her disapproval of these practices, as it greatly affected her fitness attire business. Ho, a now-successful business owner with a net worth well over £5 million states, “It’s not even a comparison. Shein likes to take from smaller brands because they know we don’t have the power or the money to fight them.”
Don’t let your business be next.
Design Infringement Remedies
If your registered design has been copied, there are various legal remedies, such as:
- Damages, which is compensation for any financial losses due to infringement.
- Injunction, which is a court order to stop the infringing activity.
- Seizure of Destruction, which is the mandatory removal of infringing products from the market.
Criminal Sanctions for Infringement
Purposely copying a protected design can result in serious consequences in the UK. The penalties for design infringement vary according to the type and degree of offense. According to the Intellectual Property Act of 2014, individuals who intentionally infringe on designs could potentially receive a prison sentence of up to 10 years or a very large fine.
Innocent Infringement
However, it is important to remember that not all design infringement is deliberate. When done accidentally, infringers may avoid paying damages, but they are still subject to injunctions and orders for delivery up (sending back of infringed goods for someone to dispose of).
Especially in cases where the design wasn’t clearly marked as registered, courts tend to be more lenient. This is why it is crucial to ensure that your registration number is visible on your products.
Unjustified Threats
The Intellectual Property (Unjustified Threats) Act 2017 ensures that individuals cannot make baseless threats of infringement. This means that if you falsely accuse someone of infringing your design, whether it be registered or unregistered, that person can actually take legal action against you in response.
Contact Us
An important investment now could save your business tomorrow!
If you think your designs are a crucial part of your business, don’t wait any longer. Contact Freeman Harris Solicitors to begin your design registration process today.