http://ipkitten.blogspot.com/2022/08/uk-government-responds-to-design-right.html
With Brexit being “behind” us, the UK government is now looking to improve and modernize the protection of intellectual property rights.
As a first step, the UK announced that it has joined the Global Brands Database made available by WIPO. The database is (relatively) easy to use and has over 50 million records from some 71 national and international collections. The UK will initially add 3 million records of its own, consisting of existing registered trade marks. As a result, the database will now also list UK registered trade marks.
Secondly, the government responded to the call for views on designs, which ran from 25 January 2022 to 25 March 2022, alongside a survey. A total of 57 responses where received, submitted mostly by law firms and trade bodies. A detailed analysis of the responses can be found here.
| A cat considering the country of disclosure for its design |
Although the government is not introducing any new changes overnight, the responses do indicate that legislative improvements may be expected on the following topics:
– Registered designs – search and examination: there were mixed views by the respondents on mandatory pre-registration search and examination requirements. Those in favour argued that it would increase certainty of the validity of design protection. Those against were concerned that pre-registration searches and examination would increase the costs of registering a design and slow down the overall registration process.
The UK government confirmed that it will further consider the arguments and stakeholder views will be sought at consultation. The government also mentioned that it will look into joining the WIPO DAS system for designs.
– Simplifying the designs system: with four design rights currently existing in the UK (registered designs, supplementary designs, continuing unregistered designs and UK unregistered design rights) there was consensus amongst the respondents that the current legal system is too complex. It was suggested that there should be a single unregistered design which has the best elements of the current unregistered design protection. Respondents also called the government to review the overlap between design and copyrights and instead consolidate designs law into a single piece of legislation.
The UK government responded that it will further investigate options to simplify the design regime, in particular with respect to unregistered designs and the relationship between design and copyright law.
– disclosure of supplementary unregistered designs: another area that suffers from complexity after the Brexit is the disclosure of supplementary unregistered designs. Currently, designers have to consider their first country of disclosure which may impact their right to a supplementary unregistered design or an unregistered Community design. In an attempt to overcome this, some designers are disclosing their designs simultaneously in the UK and EU by means of a live stream on a website, although the legal status of such simultaneous disclosure is uncertain. The respondents called for urgent clarification on these topics to prevent further legal uncertainty.
The UK government acknowledged that such uncertainty exists. It indicated that it will seek further stakeholder views and evidence to address the issues raised.
Although the consultation is a good first attempt at reshaping UK design law for the better, the UK government still has a long way to go. It would be welcomed if interim guidance were to be published, especially on topics where legal certainty is lacking.
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