Deciding whether or not to register your designs
If your new product is clear to proceed with, you may take the decision to either register a design or instead rely on unregistered rights to protect that product. Again, your design attorney can help you weigh up the specific advantages and disadvantages of relying on registered or unregistered rights to protect your new design and taking into account the factors relevant to your business. Common considerations are the markets that you intend to operate in and the level of investment that you have made in creating the new product.
Unregistered designs
Unregistered design rights arise automatically in an original design without the need for registration, but they confer narrower protection than registered rights, only allowing the owner to stop unauthorised imitations of the design. These rights may be well-suited to providing protection to designs that are not critical to your IP portfolio or have a limited shelf life. For example, in the fashion industry, unregistered designs provide immediate protection for fast fashion products.
Registered designs
Registered designs provide a broader scope of protection than unregistered designs. They protect your design from infringement by any design that does not produce a “different overall impression” on the informed user, rather than just imitations of your design. Registered designs also provide a longer term of protection, and with the registration certificate the subject of protection as well as the priority date are fixed and clear, facilitating enforcement. This makes registered designs well-suited to the protection of more business-critical designs. For example, in the fashion industry registered design rights may be well suited to protecting designs in an Haute Couture collection or iconic pieces. In the automotive industry registered designs are commonly used to protect the shape of vehicles or their external components.
Having taken the decision to register your design, it is important to remember that registered designs rights are not examined in either the UK or EU intellectual property offices. This makes filing a registered design rather straightforward, simple and quick. However, it also means that there isn’t any certainty about the validity of a design right and whether it can be successfully enforced. This point applies to your own registered designs and equally to any registered designs held by your competitors. Therefore, even if you find a competitor has obtained registration for a design that you would like to launch, a design attorney can assist you in considering the validity of their design and the technical and legal options that may nevertheless allow you to proceed.
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