Two different forms of design rights exist: registered design rights and. The registered design system is for the visual appearance of designs.
A protected design can be of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product or its ornamentation. This can include packaging, get-up, graphic symbols and typographic typefaces. A 3D design, such as an article, can be protected as well as a 2D design, such as a surface pattern, character images, logos or software icons. There is no requirement for the design to have any artistic merit, and the design can be a sculpture or handicraft item.
Parts of a product are protectable, provided they can be viewed by the end user when in normal use, are parts which are replaceable and intended to be assembled and disassembled, and are in themselves new and have individual character.
The design must be new. An identical design (or a design differing in immaterial details only) must not have been disclosed to the public anywhere in the world prior to the relevant date (which will usually be the date of application for registration).
The design must have individual character. This means that it must give a different overall impression from earlier designs to the 'informed user', who may not be a design expert but is a person who is familiar with the products in the field.
In assessing individual character, the degree of freedom in creating the design will be taken into account. For example, a functional item will have considerably less potential for creative endeavour than a decorative item, so that fewer differences from pre-existing designs are likely to be required for a functional design to qualify as having individual character.
Features of a product that are dictated by its function will be disregarded in assessing whether a product has individual character. Specifically, 'must-fit' items are excluded from protection, although the shape of a connection may be protectable in its own right.
A designer who discloses their design has a 12-month period in which to apply for its registration. This grace period gives the designer time to exhibit and market their design before deciding whether it is sufficiently commercial to justify the expense of registration, or to raise funding on the back of a demonstrably successful product.
However, if during the 12-month period a third party makes a same or a similar unconnected disclosure before the designer has applied for registration of their design, the designer's application may be refused. This risk may be avoided by making an application for registration as soon as possible after disclosure of the design.
A design will not be registrable if specific exclusions apply. The most important of these are:
The registration of a design may be declared invalid on the application of a third party, on a number of grounds, including the following:
A registered design can last for 25 years from the date of registration subject to the payment of the 5-yearly renewal fees. The date of registration is usually the application date.
Infringement of a registered design occurs when a person does anything which infringes the registered proprietor's exclusive right to use the design, or any design which does not produce a different impression on the informed user (taking into account the degree of freedom of the author in making their design).
Therefore, infringement is not limited to the exact design, but also applies to similar designs, and is not limited to the original article. For example, a design originally produced on crockery could be infringed if reproduced on curtains. Infringing acts include making, offering, putting on the market, importing, exporting, stocking or using the product without the consent of the owner.
A number of acts are specifically allowed in relation to registered designs and therefore do not constitute infringement:
Both the registered proprietor and an exclusive licensee may bring proceedings for infringement of a registered design.
An action may be brought for one or more of the following:
Registered design rights and unregistered design rights may co-exist; infringement actions may be taken in respect of either or both rights.
Registered design rights and copyright may co-exist; infringement actions may be taken in respect of either or both rights.