Unregistered design rights are inherent rights in the protection of a design, beginning from the time the design is first recorded in either a design document or an article is made to the design. For a design to be eligible for protection under UK unregistered design, it must be an original design. This means that the design must originate from the designer, not be a copy or commonplace in the design field in question and that more than a trivial degree of skill, labour and judgement was involved in the creation of the design.
UK unregistered design right only protects the design right holder from third parties copying the design. Therefore, if the alleged infringer can show that they arrived at the design independently, they will not be held to infringe.
UK unregistered design right protects a design for a period of fifteen years beginning from the end of the calendar month in which the design was first recorded in a design document or an article was first made to the design, or if articles are made available for sale or hire within five years from the end of that calendar year, ten years from the end of the calendar year in which that first occurred.
It is worth noting that a licence is available from the design right holder as of right in the last five years of the design right term.
The first owner of unregistered design right in a design is the designer, unless the design is created during the course of employment, in which case the first owner is the employer. For designs created on or after 1 October 2014 and during the course of a commission, the first owner is the designer, unless a contract which says otherwise is in place.
In addition, the first owner of the design must be a qualifying person. That is, the first owner must be a citizen or resident of a qualifying country (including the UK and the European Union), or must be a corporate body formed under UK law, or that of another qualifying country, and has a place of business at which substantial business activity occurs in a qualified country.
Unregistered design rights are excluded for (i) designs that embody a principle of construction, (ii) features of shape and configuration of an article which enable the article to be connected to, or placed in, around or against another article so that either article may perform its function (“must fit” exclusion), (iii) features of shape and configuration of an article which are dependent upon the appearance of another article of which an article is intended by the designer to form an integral part (“must match” exclusion) and (iv) surface decoration.