Intellectual Property and Brexit: Part 3 – Design Rights

Intellectual Property and Brexit

Intellectual Property and Brexit: “I’ll take: ‘Things that are difficult enough to explain on their own’, for 500!”

It’s that time of the week again; where we put intellectual property and Brexit under the microscope. Previously, we’ve shed some light on likely changes to trade marks, and copyright. This time, design rights are the focus of our attention. So pull up a pew, grab a brew – and lets get cracking!

Intellectual Property and Brexit: Design Rights

Design is one of the great, Great British pursuits. Ours is a reputation built by technical innovators and masters of craft and style. Whether, Sir James Dyson, Jony Ive or Tim Brown at IDEO… Brits remain at the forefront of the design industry. Simply put, design is part of our DNA.

Despite this legacy; in isolation, UK design rights are weaker than those in effect within the EU. This has not been a critical issue as, being part of the union, the UK has been protected by EU law. But with Brexit, UK designers will lose access to this stronger protection… and with that risk a commercial disadvantage to their EU counterparts.

But what exactly would this disadvantage look like? And what does it entail in negotiations for our designers?

The details

There are two kinds of design rights. These are: registered design rights (RDRs) and unregistered design rights (UDRs). Both British design rights differ from EU rights in both length and scope.

EU RDRs and UDRs are in effect for 25 and 3 years, respectively. Naturally, they also can be enforced within the 28 member states of the EU. In contrast, UK registered design rights last, at most, 15 years. (Like the EU UDR, the UK UDR protects a design for 3 years). And, as one would expect, post-Brexit UK design rights will only protect the design in the UK. Thus, at the very least a UK designer, successful on the continent, will likely have to register an additional domestic right.

Not only is there a disparity in length and scope – but also the design detail protected by the right. For example, whereas UK UDR only protect shape and configuration of a design… equivalent EU rights protect: colours, ornamentation, lines, texture, and surface decoration too. This level of specification is reserved only for RDRs in the UK. In this respect, UK legislation has a bit to catch up on if it wants to protect our reputation for incredible design.

What this means for negotiations and… you!

So, what does this all mean? Ultimately, the weaker position that UK rights give designers needs addressing. This is because it puts UK designers at a competitive disadvantage to those in the EU. Whilst those in the EU enjoy broader, longer and more wide-ranging protection (and can focus simply on designing)… The UK right, if not addressed, exposes the domestic industry to more infringement – ultimately taking designers away from the job at hand,

A sensible intervention may take the form of a new UK design right; in line with EU. So that when Brexit occurs; the only “hit” our designers take is duel registration of UK and EU design rights (for jurisdictional purposes).

In an ideal world; (as may happen with trade marks) the UK and EU could negotiate a deal wherein a EU RDR is still valid in the UK. Whether this idealistic idea occurs, remains to be seen…

Crucially, if you’re a UK designer, you may want to think about registering your designs both in the UK and EU. As depending on where you’re currently registered, Brexit may leave you exposed to opportunistic infringement. If you think about it now – you save yourself the tears (and financial losses) later!

This is something that we can help you with here at Virtuoso Legal. For more information, or to talk to one of our award-winning solicitors, please call:

0113 237 9900

Intellectual Property and Brexit: Part 3 – Design Rights was written by Dr. Martin Douglas Hendry

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