The protection and exploitation of designs is becoming increasingly popular and alongside the law of confidence is a valuable alternative to the patent system.
There is a clear difference between the inventive, functional products and processes protected by a patent and the more creative, artistic works protected by copyright law. However, many products that, for various reasons, are not patentable nor qualify for copyright, are marketed and sold.
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It is the features of these products, including their appearance, that are the subject of design rights and there are two levels of protection-
Applications for registration are made to the Designs Registry at the Patent Office and if successful, protection can last for a maximum period of 25 years.
Registered designs protect the ‘appearance of the whole or part of a product’ which may result from such features as ‘the lines, contours, colours, shape, texture or materials’ of the goods. To achieve registration, the design must be new and of individual character. If a feature relates to the technical function of the product, it will not be protected.
The unregistered design right arises automatically (like copyright) and attaches to original aspects of the shape or configuration (whether internal or external) of the whole or part of an article. The right was introduced specifically for functional and commercially exploited articles.
It must be original, not commonplace in the design field in question, at the time of its creation and must not be copied. It must be recorded (eg the drawing of the design on paper) or made into an article.
Maximum protection under the unregistered design right is for 10 years following first marketing of an article, subject to an overall limit of 15 years from the end of the year in which the design was first recorded in a material form.