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 infringement.
What are design rights?
In the UK, there are two primary types of design rights that protect the various aspects of your product. Whether that is the form of a chair, 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:
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- These provide exclusive rights for your design for up to 25 years (with renewals every 5 years).
- 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.
- They offer the most protection, making it easier to act against design rights infringement.
Unregistered design rights:
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- Unregistered design rights offer an automatic protection without registration, meaning there is no additional paperwork to be done after creation.
- 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 disputes due to their limited scope.
Brexit’s impact on design rights
Following Brexit, design right infringement cases in the UK have adapted due to legal adjustments.
Prior to December 31st 2020, the UK also acknowledged protections across the EU, like Registered Community Designs (RCDs), International Designs designating the EU (registered under the Hague agreement) and Unregistered Community Designs (UCDs).
However, post-Brexit, the holders of these rights automatically received equivalent UK-based protections, such as Re-Registered Designs (RRDs) and Re-Registered International Designs, and Continuing Unregistered Designs (CUDs).
Moreover, a new type of design protection was created which still exists today, named Supplementary Unregistered Design (SUD). SUDs are comparable to UCDs by protecting two-dimensional and three-dimensional designs for a period of three years.
The Importance of Registration
So… why register?
When you register your design creation, it provides stronger protection for your work.
- Helps deter others from replicating your work unlawfully
- Provides easier enforcement – proving ownership and winning design rights disputes becomes more straightforward
- Boosts business valuation – businesses with legally protected assets are heavily preferred by investors
Impact on small businesses
Overall, registered design rights prevent theft of intellectual property in the UK. Large corporations often target small brands with unregistered designs.
Big companies like Shein and Steve Madden have become notorious for this type of practice, as they 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 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. According to the Registered Designs Act 1949, this could lead up to 10 years in prison, a fine, or both.
Innocent Infringement
However, it is important to remember that not all infringement of design is deliberate. When done accidentally, infringers may avoid paying damages, but they are still subject to injunctions and orders for delivery up (the sending back of infringed goods for their disposal).
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. This means that if you falsely accuse someone of violating a registered design act, that person can actually take legal action against you.
Contact Us
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.
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!
