Simplifying the system
Following Brexit, the UK is no longer part of the Community design rights system. However, there is continued UK protection for designs already registered as at 31 December 2020. Consequently, since 1 January 2021, the UK has a complex system of five separate design rights: UK registered and unregistered design rights; ‘re-registered’ and ‘continuing unregistered’ design rights (derived from Community registered and unregistered designs existing on 31 December 2020) and supplementary unregistered design rights (a new right equivalent in scope and duration to Community unregistered design rights, which applies to all designs first disclosed in the UK after 1 January 2021). The IPO is seeking views on the inconsistencies between these various rights, such as the scope and the term, and how the system can be simplified.
Overlap with copyright
When the UK left the EU, the EU and the UK agreed that designs shall be eligible for both design right protection, including unregistered design rights, and copyright protection in the territories of each party. This preserved the status quo in the UK in relation to overlapping copyright and design protection. However, the UK has flexibility under the deal, over the conditions for copyright protection for designs and the level of originality required. The UK is therefore free to diverge from the EU on the framework for copyright protection for designs, such as the length of copyright protection for designs and the kinds of works which get protection. This is one of the areas the IPO is now exploring in the call for views.
First disclosure of unregistered designs
In order to qualify for protection in the EU as an Unregistered Community Design, a design must be first disclosed within the EU. Consequently, following Brexit, a first disclosure in the UK will qualify for supplementary unregistered design rights. However, first disclosure in the UK will disqualify a design for protection under EU design law. As we previously reported, here, this particularly affects the UK fashion industry, since many designs are first disclosed at London Fashion Week. The IPO is therefore calling for views on possible solutions to give designers unregistered design protection in both the UK and the EU, including simultaneous disclosure by live-streaming.
The consultation closes at 11.45pm on 25 March 2022. We will be following the IPO’s consultation process closely, both the call for views and the IPO’s response, and would be happy to help with any submissions you would like to make to the IPO in this area.