IP, Technology & Data

The IPO‘s consultation on the proposed reform of the legal framework for the protection of designs is due to close a fortnight today (2 October).

The consultation is a further step towards implementing one of the key recommendations of last year’s Hargreaves Review and follows an earlier call for evidence on design rights reform.

The proposals
Currently, designs can be protected by a mish-mash of unregistered design rights (both UK and (European) Community), registered design rights (again, both UK and Community) and, in some cases, copyright. Each lasts for differing periods of time, and covers different applications (for example, 3D objects versus aesthetic designs), and is subject to different, and complicated, rules in relation to creation of the right.

In an attempt to get round the time limited nature of registered design protection, there have even been attempts to use registered trade marks to protect product designs.

The consultation is seeking to make this clearer. In particular, the consultation is seeking views on proposals to:

  • improve the enforcement regime (including whether deliberate copying should be a criminal offence, as it is with copyright and registered trade marks) and enable people to understand more fully what rights are held by others, to help avoid disputes;
  • resolve uncertainties around the scope of protection (including the scope of protection given to unregistered designs, or whether to scrap unregistered designs altogether);
  • clarify what constitutes an infringement (including the possibility of introducing a prior use/good faith defence in relation to registered designs, and exemptions for non-commercial use); and
  • extend the period of potential deferment for publication of registered design right applications from 12 to 18 months, to reduce the risk of the product being copied or imitated prior to launch; and
  • simplify the laws surrounding the ownership of and qualification for design right

Design rights in the public eye
After many years of being considered by many outside industry and legal professions to be a fairly obscure area of intellectual property rights (as opposed to the better known patents, trademarks and copyright), design rights arguably hit the big time earlier this year in the High Court case involving Apple’s iPad and Samsung’s Galaxy Tab.

That case wasn’t about copying technical innovation, but simply about the allegedly distinctive physical shape of the iPad. As my colleagues John and Mark have blogged, that case didn’t end too well for Apple (arguably even the ringing endorsement of Apple’s products by a High Court judge will have done more for Samsung than Apple).

However, the case (along with others involving spare parts for Dyson vaccuum cleaners and replica alloy wheels) has helped bring greater attention to the design rights framework and whether it is effective in its current form in encouraging innovation.

How to respond to the consultation
What do you think? Does the current regime work for your business? You can provide your views to the IPO by following this link. If you’d like to discuss how the IPO’s proposals might impact upon your business, please get in touch.

Remember, the consultation closes on Tuesday 2 October 2012.

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Martin Sloan

Partner at Brodies LLP
Martin is a partner in Brodies Technology, Information and Outsourcing group and has wide experience of advising clients on technology procurement and IT and business process outsourcing projects. Martin also advises on data protection (including the GDPR), and general technology and intellectual property law, and has a particular interest in the laws applying to social media and new technology such as mobile apps, contactless/mobile payments, and smart metering.
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