Currently, once a novel design possessing individual character is made public it is automatically protected by an ‘Unregistered Community Design’ (UCD), an EU right. A UCD allows the holder to prevent unauthorised copying of the design. As well as ‘identical’ designs, UCDs cover designs which produce the same ‘overall impression’ on an informed user. UCDs are free rights which extend across the entire EU and last 3 years.
Although the UK does have a national ‘UK Design Right’, it explicitly does not cover surface decoration. When the UK leaves the EU, UCDs will no longer cover the UK. This may leave designers of surface decoration exposed.
What is being done?
Fortunately, both the UK/EU draft agreement on the UK’s exit, and the UK’s own guidance on a ‘no deal’ Brexit provide for existing right-holders to be granted a separate but equivalent UK right to the UCD. The UK government intends to create a supplementary UK Design Right which will mirror the UCD’s coverage of surface decoration.
So what’s the risk?
Although they promise to ‘plug the gap’, these provisions are not yet enshrined in law. If gaining protection for novel surface decoration in the UK is important to your business, we recommend that a UK Registered Design is filed. Unlike UK Design Right, UK Registered Designs can protect surface decoration. In addition to guaranteeing protection, they also provide longer term (up to 25 years) and more robust protection than unregistered rights.
What about copyright?
Copyright covers original artistic works, and can be used to prevent unauthorised copying of surface decoration. That said, there are differences and copyright cannot be relied upon to replace UCD for surface decoration when the UK leaves the EU.
Making sure you have the right protection for your original designs, even without the complexity of Brexit, can be daunting. Vault IP, as intellectual property attorneys, are experienced in advising on all IP rights for creative businesses.