Design rights protect the hard work and imagination that goes into creating unique and original designs. They not only protect the look of a design, or parts of it, but they also ensure that creators retain control over how their work is used and reproduced. However, when others exploit or copy designs without the owner’s permission, it constitutes design right infringement.
In this post, we breakdown the difference between the specific rights granted by legislation in the UK, and what constitutes infringement for those specific design rights.
You can see the differences between registered designs and unregistered design rights in the UK in our post here.
Design Infringement by right
Unregistered Design Right Infringement: Only the owner of the UK unregistered design has the exclusive right to reproduce that design for commercial purposes.
Primary infringement occurs when:
- someone copies the design either in full or substantially;
- or instructs someone else to copies the design either in full or substantially.
Secondary infringement includes:
- importing an article into the UK for commercial purposes;
- possessing an article for commercial purposes; and
- selling, hiring or offering for sale or hire an article.
For infringement to occur, it must be done without a license from the owner.
Registered Design Right Infringement: In contrast to UK unregistered designs, there is no distinction between primary and secondary infringement.
Each and every case in which an individual uses the registered design without the owner’s consent including:
- making, offering, putting on the market, importing, exporting; or
- using a product in which the design is incorporated; or
- on which the design is placed; or
- stocking a product for any of those purposes is treated as a serious offense.
Primary Design Infringement
Primary infringement occurs when someone copies or authorises another to copy a design without the design right owner’s permission. This includes actions such as reproducing or recording a design without consent from the designer.
Secondary Design Infringement
Secondary infringement occurs when someone deals with or facilitates the distribution of copies of an infringing design. This includes actions such as importing, possessing, selling, or hiring infringing designs. It can also involve providing the means for making copies or allowing the use of premises for activities related to infringement.
If your registered design have 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.
Design right infringement can substantially affect the value of original design and disrupts fair competition in the marketplace. Whether through direct copying, unauthorised importation, or the sale of unlicensed designs, these actions can have serious consequences.
If you have a design right infringement claim, please contact us and we will be happy to advise on the matter in detail.
