In the UK, the UK Unregistered Design Right (UDR) was introduced to provide a form of shorter term protection against the copying of ‘industrial designs’ than had previously been available under copyright. Design means any aspect of the shape or configuration of a product. For a design to qualify for UDR, it needs to be original and not be commonplace in the relevant design field. A further qualification for UDR is that of the designer, the person who commissioned the design or the country of first marketing must fall within a permitted list. This list includes all EU countries, but notably excludes countries such as the United States and Japan. UDR arises automatically upon the creation of the design, and remains enforceable for between 10-15 years from when first created or exploited. There are no national rights for unregistered designs in Ireland making the Community protection of these designs very important. Unregistered Community Design (UCD) does not require the owner to qualify by reference to nationality. UCD is a right that arises automatically and applies throughout all member states of the EU, thereby avoiding the need for separate infringement proceedings in each relevant country. UCD protects designs (being the appearance of the whole or part of a product) that are new, have individual character within the EU, have been made available to the public, and are not in an excluded category. UCD lasts for 3 years from the date on which the design is first made available to the public.
Effect of Brexit on Unregistered Designs:
While the UK remains a member of the EU, designs, including patterns, may be automatically protected in the EU as UCDs. Although post-Brexit unregistered protection for designs will continue to exist through the UK unregistered design right and by using copyright, unless otherwise negotiated in the Brexit arrangements, this right will not extend to the EU.