UK Design Rights – A Simple Guide

Understanding Both Registered and Unregistered Design Rights

Design rights protect the visual appearance of products, ensuring that the creative effort invested in design can be commercially protected. In the United Kingdom, there are two forms of protection: the Registered Design (RD) and the Unregistered Design Right (UDR). Each provides a different form of legal protection and suits different business strategies, depending on the product’s commercial lifespan and the level of investment involved.

A design concerns the appearance of the whole or part of a product, including its shape, contours, lines, texture, materials and ornamentation.

It focuses on how a product looks rather than how it functions.

Technical or mechanical features fall outside design protection and may where applicable be more appropriate for patent protection.

For both forms of design right, the emphasis is on visual distinctiveness.

Registered designs

A UK registered design grants its owner a monopoly right over the appearance of a product.

Once registered, it allows the owner to prevent others from making, using, selling, importing or exporting products incorporating the same or a similar design, regardless of whether the competing design was created independently.

It is therefore a powerful right that operates without the need to prove copying.

To qualify for registration, a design must be new and must possess individual character.

A design is considered new if it differs from earlier designs by more than just ‘immaterial’ details and possesses individual character when it creates a different overall impression on an informed user when viewing a comparable design.

The law provides a twelve-month ‘grace period’ allowing designers to publicly disclose their design up to twelve months before filing without losing novelty, although such disclosure may still hinder registration in some overseas jurisdictions.

Registered protection extends to the appearance of the whole or part of a product and can include an array of elements such as packaging, graphical symbols, typefaces or surface decoration.

However, any features that are present purely for technical function (or features necessary for interconnection with another product) are not protected within the same scope.

Registered design filings are made in submission to the UK Intellectual Property Office (UKIPO).

The process is relatively quick and low in cost. Official examination is limited to a formalities review only and the UKIPO does not conduct a substantive examination for novelty or distinctiveness.

This means designs are easy to register, but may be open to counterattack later on when used as enforcement tools against competitors.

An applicant must provide full visual representations of the design it seeks to protect, which can be in the form of drawings or photographs. An official fee must also be paid when filing.

Multiple designs may be submitted under the scope of a single application and applicants can defer publication for up to twelve months.

This deferment is a good strategy to deploy when confidentiality at product launch is critical.

A registered design can last for up to twenty-five years subject to the payment of a renewal fee every five years.

Once granted, it offers credible enforcement because the owner can take action against any unauthorised use, with no requirement to prove copying.

Remedies for infringement available include the seeking of injunctions, damages or an account of profits.

In cases of deliberate infringement, criminal penalties may also apply.

The weakness to registered designs, if there is one, is that they can be invalidated if they are shown by a challenging party to lack novelty or individual character, or if it is demonstrated that the applicant was not entitled to register the design in the first place.

Other earlier intellectual property rights such as trade marks or copyright may also provide grounds for invalidity of a design registration.

Unregistered Design Rights

An Unregistered Design Right (UDR) provides automatic protection for certain aspects of a product’s shape or configuration without the need for registration.

It is particularly useful where the costs or timing of registration make formal protection impractical.

However, unlike registered rights, UDR is not a monopoly right. To prove infringement, the holder must show in evidence that it holds rights in the design and that its design has been copied, although independent creation of a design can be raised as a valid defence by an accused party.

UK UDR arises automatically when a qualifying design is recorded in a document or embodied in an article by a qualifying person, which typically means a UK national, resident or a business with a UK establishment.

Since successful enforcement is part-reliant on proof that the UDR vests with its owner, maintaining dated design records, sketches and correspondence relating to the design creation is paramount for establishing authorship and supporting enforcement proceedings, as and when needed.

The right can also apply to designs originating in certain territories with reciprocal UK arrangements.

A UDR will protect an original design that is not commonplace in the relevant design field, but the right does not extend to methods of construction, surface decoration or any features dependent on integration with another product. Spare parts are good examples of this exclusion.

The term of UDR protection lasts for fifteen years from the end of the year in which the design was first created, or ten years from first marketing if the design is commercialised within five years.

During the final five years of the term, the owner is obliged to grant licences to third parties on reasonable terms.

This is a measure designed to prevent monopolistic blocking of market use, but at the same time allowing fair compensation for the UDR owner.

Ownership of a UDR initially rests with the designer unless the design is created in the course of employment or under commission, in which case the employer or commissioner holds the right.

A UDR can be transferred or licensed to any other legal entity subject to the appropriate documentation being drawn up.

Strategic considerations

When deciding between registered and unregistered design protection, businesses should consider factors such as the expected product lifespan, the likelihood of copying, enforcement costs and the intended markets.

Products with long commercial lifespans or significant market visibility are best protected through registration since this offers robust, long-term exclusivity.

For designs with shorter shelf-lives and where registration may not be cost-effective, reliance on UDR may be sufficient.

The timing of design disclosure also requires careful management.

If registration is contemplated, designs should remain either confidential until filing, or disclosure should occur within the twelve-month grace period to preserve eligibility for registration.

Early evaluation and strategic planning can ensure that appropriate rights are in place before a product launch.

Overlap with copyright

Certain design configurations may also attract copyright protection. In particularly, surface decoration and graphical designs may be protected as copyright artistic works.

Copyright arises automatically and can coexist with registered or unregistered design rights provided the work meets the necessary originality requirements and is not excluded by industrial application rules.

In practice, overlapping rights can offer layered protection. This can be valuable for complex or high-value designs and multi-faceted protection can give rise to stronger challenges to infringers.

Do not neglect your designs!

UK design law provides a flexible framework combining formal, longer-term registered rights with immediate, unregistered design protection.

Registered designs deliver broad, enforceable exclusivity with minimal evidential burden; unregistered rights offer automatic coverage for simpler or short-term designs.

Together, they form an effective system for protecting design creativity and boosting a business’s bottom line.

By understanding how each form of protection operates, why confidentiality is important and the need to maintain thorough design records, businesses can protect their creative investment effectively and strengthen their intellectual property portfolios in both domestic and international markets.

If your business is looking to register a design or you have spotted an infringer that has copied your design, get in touch with SH&P for a consultation with one of our design experts.