Industrial designs are important for many different kinds of businesses
But what are they exactly, and how are they best protected via IP law?
Photo by Kumpan Electric on Unsplash
Words by Dr Martin Douglas Hendry
What is an industrial design?
An industrial design is a creative design for products or packaging, resulting from the application of industrial design principles. It is concerned with the aesthetics of form and can be applied to a wide variety of products, from furniture and appliances to vehicles and buildings.
In the United Kingdom, the law of industrial design is governed by the Copyright, Designs and Patents Act 1988 (CDPA 1988), which provides for the protection of designs by means of copyright, registered design right and unregistered design right.
Copyright protection is available for original designs that are 'works of artistic craftsmanship', provided that they are original in the sense that they are the author's own intellectual creation and not merely a copy of another work. Copyright is an "automatic" right that arises at the point a new creative work is made.
Registered design right protect the 'design' of a product, which includes its appearance, shape, configuration, pattern and ornamentation. In order to be eligible for protection, the design must be 'new' and 'original', and must not have been previously published.
Unregistered design right protects designs that are not eligible for registered design right protection, such as designs that are not 'new' or 'original' enough to meet the requirements of the Act. Like copyright unregistered design right is a 'automatic' right that arises automatically.
What is the difference between an industrial design and an invention?
An industrial design is defined as the visual appearance of a product and can include the product’s lines, contours, colours, shape, texture, and/or materials.
An invention, on the other hand, is a new technical solution to a problem, which can be a product, a process, or a method. In order to be protected under UK law, an industrial design must be registered with the Intellectual Property Office, while an invention can be protected through a patent.
There are several key differences between industrial designs and inventions.
Firstly, an industrial design is primarily aesthetic in nature, while an invention must offer a new technical solution. In essence, a patent protects the function of the invention not it's aesthetic qualities.
Secondly, industrial designs can be protected through registration, while inventions must be patented. Finally, industrial designs are typically only protected for a limited period of time as registered designs (5 years in the United Kingdom), while patents can last for up to 20 years before entering the public domain.
Notably, when designs are registered they are not examined - and as such, they can be invalidated post-hoc should prior rights or competing rights come into play.
Patents on the other hand are examined at length to ensure that they are novel, reducing the likelihood they will be revoked or invalidated after registration.
How do you protect industrial designs?
There are a few different ways to protect an industrial design in the UK from an intellectual property perspective.
One way is to register the design with the Intellectual Property Office. This will give the design legal protection and can be used as evidence in court if necessary. As per the above, industrial designs will also automatically attract unregistered design rights and copyright at the point they are created.
Another way to protect a design is to keep it as a trade secret. This means that only people who have signed a non-disclosure agreement will be able to see it.
This can be difficult to enforce, but it may be the best option for some designs depending on the status of the invention and its place within the business.
What are the limitations around legal protection for industrial designs?
There are a number of limitations around the intellectual property protection one can achieve in the UK for industrial designs.
One such limitation is that the protection is only available for the design of the product itself and not for any associated branding or packaging - which need to be protected via separate means.
Additionally, the protection only lasts for a limited period of time – typically around 5 years from the date of registration.
When registered design rights lapse, the owner of the design has the same legal protection for their design - and may need to rely on other rights in order to protect their unique
Conclusion: protecting industrial designs
If you are looking to protect your design, it can be difficult to understand which intellectual property right (or combination of rights) is best to leverage.
It is important to know that there are many overlapping rights, which protect a design in a number of different ways. It is important to speak to intellectual property specialists to ensure that your best commercial interests are protected and that this protection is as robust and long-lasting as possible.
If you would like to speak to our team of IP solicitors, get in touch by clicking the button below.
Disclaimer: This FAQ should not be construed as legal advice on any specific facts. The contents are intended for general informational purposes only. You are urged to consult your own solicitor on any specific legal questions you may have.
Want to get started?
Click below to be get started working with us.
Leeds 0113 237 9900
London 0208 088 2367