Registered design

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A new product or article may be invented, created or designed which may not satisfy the tests for patents. These can be functional - a tool, a box, packaging, an exhaust pipe, or they can be decorative items – a lamp, a pattern on pottery, a piece of mass-produced furniture.Design law may protect these products or articles. There are TWO systems to obtain protection for a design. There is a unregistered design right which is provided for by the Copyright Designs and Patents Act 1988 design right.

The second sysstem requires registration and is primarily for aesthetic designs pursuant to the provisions of the Registered Designs Act 1949 . Registered Designs are for new decorative items – patterns on pottery or ceramics. The design must have ‘eye appeal’ and is for aesthetic articles. Surface patterns fall exclusively within this area of law.

By S1(1) RDA 1949 a ‘design’ means (S1(1)) ‘features of shape, configuration, pattern or ornament applied to any article by an industrial process, being features which in the finished article appeal to and are judged by the eye’

The protection for registered designs is for up to 25 years but needs to be renewed every 5 years. The owner of the registered design is the author of the design. There are exceptions for employees and commissioned works.

By S7 RDA 1949 registration of a design gives the registered proprietor certain exclusive rights in respect of the article embodying the design:

• to make or import for sale or hire or for use for the purposes of a trade or business

• To sell, hire or offer or expose for sale or hire

The courts will look at a potential infringement through the eyes of a hypothetical customer - would the design enhance the item so the customer would purchase that article rather than another item which may have the same function but was not designed in the same way.

Remedies include injunctive relief, damages, account for profits and ciminal sanctions (s35 RDA 1949)

These two diferent design rights overlap themselves and also overlap with ‘artistic works’ which are protected by copyright law copyright. For example a porcelain figurine could be any or all of:

• Artistic copyright : as a sculpture s4 CDPA • Registered design: RDA S1(2). • Design Right CDPA S213(1)

As a test of what protection might apply you should look at the design in question (although the answer may still not be that obvious)

Artistic work: Depends on work : graphic work, photographs, sculptures and collages protected by copyright as artistic works. CDPA S4

Aesthetic: Features of shape, configuration, pattern, ornament. A craft work rather than an artistic work. Registered design. RDA 1949. There needs to be an element of application by industrial process.

Functional: shapes, configurations: Design right. CDPA. Registered designs are therefor limited to those items or articles having eye appeal.

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