Briefing Note - Overview of Community Designs Protection

The European Design Directive was introduced by European Parliament in 1997 to harmonise the law in countries across the European Economic Area. Members of the EEA were required to implement municipal laws to provide the protection to its citizens granted by the Directive. Prior to the Directive, different requirements existed across the countries for design registration.

The European Union passed the Regulation on Community Design in December 2001 which created the Unregistered Design Right and the Registered Community Design Right. The introduction of these rights heralded the registrability of functional designs, which previously were excluded from protection in the UK. The Regulation and the Community Design Right operate independently of one another, so two independent rights for intellectual property protection of an industrial design is available.

Scope of Design Protection – What Registered Designs Protect

An industrial design comprises the ornamental or aesthetic aspects of an article. As such design law protects the appearance of those features applied to a product such as the shape or surface of an article, patterns, lines, contours, texture and colour. An industrial design may be applied to a two-dimensional or three-dimensional product, from aesthetic items such as wallpaper to functional items such as chairs and tables.

The Directive required the UK to amend its existing laws, whilst other members completely replaced their designs regime.

A design has a separate existence to its tangible form when it is applied to articles. Conceptually therefore designs are applied to an article. An article may constitute the entire marketed product, simply a part of the whole or combinations of the constituent parts of the whole.

Although computer software is specifically excluded, individual elements of the user interface are registrable. Typefaces (fonts) and graphic symbols fall under protection of the Regulations. Special rules apply to the ownership of computer generated designs. A computer generated design is one that is ‘generated by computer in circumstances that there is no human designer’: Designs Act s 263(1).

The Registered Design Right makes protection available for 25 years which commences at the application date. Industrial designs may also qualify for copyright protection in the UK and elsewhere, depending the country in question.