Such exclusions may be where the design is: dictated solely by technical function; not in line with public policy or morality; or subsists in features necessary so that it can connect to another product(s). Design registrations may be invalidated where these conditions are not complied with. However, there is no procedure to oppose design registrations.
In essence, Registered Design Rights protect the appearance of "new" consumer items, and can include logos or characters associated with the same in terms of being part of the "get-up" of such items. Accordingly, it is common place to apply for the same in addition to a Registered Trade Mark. In the past it has been utilised to protect jewellery, clothing, furniture, musical instruments, and the packaging and presentation of goods.
Once a design has been established, it is required to be registered. The protection awarded by a registered right is preventing others from using the design by granting an exclusive right. UK Registered Design Rights can be obtained via an application process through the United Kingdom Intellectual Property Office. To protect designs throughout the European Community, an application for a Registered Community Design can be made to the Office for Harmonisation in the Internal Market for a Community Design, this Office being based in Alicante, Spain.
The application process in both circumstances generally takes 3 months, and a successful application runs for 5 years from the filing date. Hereafter, the right must be renewed after every subsequent 5 year period until 25 years of protection is secured. 25 years is the maximum total for protection. Such protection gives the applicant the exclusive right to use the designs and any design which "does not produce on the informed user a different overall impression" in the United Kingdom and the European Community respectively.
Registered Designs can also be protected in the United Kingdom by designating the EU in front of the World Intellectual Property Organisation through filing an International Registration.
The following remedies are available where Registered Designs are infringed:
- provision of information (as to extent of dealings, suppliers and customers);
- damages (most common remedy sought); and
- delivery up/destruction.
Business need to not only ensure that their rights are protected, but also ensure that they are not infringing the rights of others.