Securing design rights is essential to protecting the intellectual property of your business. Whether you are a designer, small business owner, or operating in creative sectors of the UK market, understanding design rights infringement and how to protect yourself from it can make a world of difference.
The UK offers both registered and unregistered protections, each useful in different scenarios. To protect your business, you should know the following information about design rights infringement.
What is design right?
Design right is a form of intellectual property protection that protects the appearance of a product. In the UK, design rights ensure that a product’s shape, configuration, and overall visual appeal cannot be copied without permission.
This can be the form of a chair, the packaging of a tech device, or a fashion item.
Design rights are 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
In the UK, there are two primary types of design rights that protect the various aspects of your product. These are:
Registered design rights:
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- These provide exclusive design rights for up to 25 years (with renewals every 5 years).
- Essential for any type of company whose designs are an important part of their branding and/or marketing strategy.
- They offer the strongest protection, making it easier to act against design rights infringement.
Unregistered design rights:
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- Unregistered design rights arise automatically upon creation, without need for registration.
- They protect only the shape and configuration of 3D objects for up to 15 years.
- This type of protection may be enough in industries like fast fashion, where products have a much shorter life cycle.
- However, they are more difficult to enforce in design rights infringement cases due to their limited scope.
Registered Design Act: Key legislation
The Registered Design Act 1949 is the primary UK legislation governing registered design rights. It outlines the process for registering designs, the rights granted to design owners, and the enforcement mechanisms against infringement.
Under this Act:
- A registered design provides legal protection against unauthorised use, preventing others from creating designs that do not produce a “different overall impression” on an informed user.
- Design owners have the right to take legal action against infringers, seeking remedies such as injunctions, damages, or an account of profits.
- Infringement of a registered design can lead to financial liability, though it is generally a civil rather than criminal matter, except where counterfeiting laws apply.
Ensuring your design is registered under the Registered Designs Act strengthens your ability to enforce your rights.
Brexit’s impact on design rights
Following Brexit, design right infringement cases in the UK have adapted due to legal adjustments.
Prior to 31st December 2020, UK businesses could rely on EU-wide protections, including:
- Registered Community Designs (RCDs)
- International Designs designating the EU (registered under the Hague agreement)
- Unregistered Community Designs (UCDs).
However, post-Brexit, the holders of these rights automatically received equivalent UK-based protections, such as:
- Re-Registered Designs (RRDs)
- Re-Registered International Designs
- Continuing Unregistered Designs (CUDs)
- Supplementary Unregistered Design (SUDs)
These adjustments mean that businesses must now register a UK design separately to gain protection outside the EU.
The importance of registering a design
So… why register your design?
When you register your design creation, it provides stronger protection for your work.
- Deters infringement – having a registered design helps deter others from replicating your work unlawfully by claiming ignorance
- Stronger enforcement – proving ownership and winning design rights infringement cases becomes more straightforward
- Increases business valuation – Investors prefer businesses with well-protected intellectual property assets
Impact on small businesses
Registered design rights play a crucial role in protecting small businesses from design rights infringement. Large corporations often target small brands by copying their unregistered designs, knowing that legal action can be difficult and expensive.
Big companies like Shein and Steve Madden have become notorious for this type of design rights infringement.
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.”
This highlights why small businesses must proactively register their designs to avoid being taken advantage of.
Don’t let your business be next.
Design rights infringement remedies
If your registered design is unlawfully copied, there are various legal remedies, such as:
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- 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 offence. Under the Registered Designs Act 1949, this could lead to:
- 10 years in prison
- A significant fine
- Legal costs and damages
Innocent Infringement
However, it is important to remember that not all design right infringement is intentional. When done accidentally, infringers may depend on legal defences to avoid paying damages, but they are still subject to:
- Injunctions (stop selling the infringing products)
- Orders for delivery up (return or destroy any remaining stock)
Especially in cases where the original 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 protects businesses from baseless claims of design infringement.
If someone falsely accuses you of violating a registered design, you can take legal action against them for unjustified threats. This ensures that design rights disputes remain fair and legitimate.
Solicitors for design rights
Dealing with design rights infringement can be difficult. Whether you are looking to register a design, enforce your design rights, or defend yourself against a claim, working with solicitors for design rights is highly recommended.
A solicitor for design rights can help you:
- Register your design properly under the Registered Design Act
- Conduct design searches to ensure your work does not infringe existing rights
- Enforce your design rights through legal proceedings
- Defend against false infringement claims
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!
