IPO Survey on Priorities to Shape UK System for Protecting Design
All this came to an end on 1 Aug 1989 when the Copyright, Designs and Patents Act 1988 came into force. The Act overhauled the Registered Designs Act 1949 and provided that it was "not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design." The Act created a new intellectual property right to protect "the design of aspects of shape or configuration" of the whole or parts of articles known as "unregistered design right," Design right subsisted for a much shorter period than artistic copyright and in the last 5 years of that term anyone including an infringer could apply for a licence of right to make articles to the design.
The Registered Designs Act 1949 was overhauled again when Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs OJ L 289, 28.10.1998, p. 28–35 was transposed into English law. Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs OJ L 3, 5.1.2002, p. 1–24 introduced an EU-wide system of design registration with a new unregistered Community design right for designs that could be registered as registered Community designs or registered designs known as unregistered Community designs.
Brexit abolished both registered and unregistered Community designs but art 57 of the agreement by which the United Kingdom withdrew from the European Union replaced unregistered community design with a new supplementary unregistered design right which is generally abbreviated to Suds, The end result is that we now have a multiplicity of intellectual property rights protecting different aspects of industrial resigns with different periods of subsistence. For example, design right protects the shape or configuration of an article for 10 years but any surface decoration on the article can be protected by copyright for the life of the author plus 70 years.
One of my instructing solicitors penned the following comment to my article on Suds:
"I had thought that one tiny benefit of Brexit would be that we could drop this absurd and nearly-useless form of intellectual property. Yes, it protects some aspects of a design that design right doesn't. but copyright is a pretty effective form of protection for surface decoration and one has to ask whether the additional scope serves any useful purpose. The fact that designs have to be novel and to have individual character means very few designs will ever benefit from a SUD anyway. CUDR was, to my mind, just another for large rights owners to threaten (but not to the point of being actionable) smaller competitors: my one experience of CUDR was when my client was threatened by a household name fashion house over a retro design that dated back to the sixties. I tried hard to persuade the client to sue for groundless threats (the solicitors who fired off the threat without doing any homework deserved it too) but like most small businesses they were all for a quiet life, and settled for having my bill paid for them. My inclination since then has been to disregard any threat based on CUDR (and now SUD), asking "is that really the best you've got?". The point was made when s.52 was repealed that design protection is a finely balanced system and interfering with one part of it is likely to upset the equlibrium, but the government does not deal in nuance."
HM Government seems to have taken such comments to heart and to have been thinking on similar lines because it wrote in its Call for Views on Designs on 12 July 2022:
"Following the UK’s departure from the European Union (EU), the UK is no longer subject to EU law. There is also no longer a need for harmonisation with the European Union Intellectual Property Office (EUIPO). This gives the UK new flexibilities and opportunities to define the domestic design regime. As we negotiate trade deals with international partners, we want to ensure the UK system supports UK designers and encourages overseas investment in the UK. This will give the UK a competitive edge and allow designers to get the most from new opportunities."
"I had thought that one tiny benefit of Brexit would be that we could drop this absurd and nearly-useless form of intellectual property. Yes, it protects some aspects of a design that design right doesn't. but copyright is a pretty effective form of protection for surface decoration and one has to ask whether the additional scope serves any useful purpose. The fact that designs have to be novel and to have individual character means very few designs will ever benefit from a SUD anyway. CUDR was, to my mind, just another for large rights owners to threaten (but not to the point of being actionable) smaller competitors: my one experience of CUDR was when my client was threatened by a household name fashion house over a retro design that dated back to the sixties. I tried hard to persuade the client to sue for groundless threats (the solicitors who fired off the threat without doing any homework deserved it too) but like most small businesses they were all for a quiet life, and settled for having my bill paid for them. My inclination since then has been to disregard any threat based on CUDR (and now SUD), asking "is that really the best you've got?". The point was made when s.52 was repealed that design protection is a finely balanced system and interfering with one part of it is likely to upset the equlibrium, but the government does not deal in nuance."
HM Government seems to have taken such comments to heart and to have been thinking on similar lines because it wrote in its Call for Views on Designs on 12 July 2022:
"Following the UK’s departure from the European Union (EU), the UK is no longer subject to EU law. There is also no longer a need for harmonisation with the European Union Intellectual Property Office (EUIPO). This gives the UK new flexibilities and opportunities to define the domestic design regime. As we negotiate trade deals with international partners, we want to ensure the UK system supports UK designers and encourages overseas investment in the UK. This will give the UK a competitive edge and allow designers to get the most from new opportunities."
According to the Government's response the IPO received 57 responses to its Call for Views and 288 responses to a survey of designers. It summarized the views of respondents and the Government on
Registered designs – search and examination, Simplifying the designs system, Disclosure of supplementary unregistered designs, Future technologies, Deferment and Enforcement.On 25 Feb 2025, the IPO launched a new Survey on priorities to shape UK system for protecting designs. It is aimed at designers, design businesses, legal professionals and anyone interested in design and will explore the principles which should shape the future of the UK designs system. The call for evidence states that the IPO has identified 5 principles which it thinks are important to users. Those 5 principles are:
- cost – the system should offer value for money
- validity – the system should provide appropriate level of validity and clarity about the existence of IP rights
- speed – design protection should be quick to obtain and enforce
- choice – the system should provide choice for designers, and
- simplicity – the system should be as simple as possible
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