Tackling bad faith designs: What potential UK design changes can mean for businesses

Introduction

A significant review of the UK designs system is underway. One of the particular focuses is on addressing the issue of bad faith design registrations. This move looks to address a perceived growing abuse of the current system, which can allow registration of designs for well-known products or products not owned by the person filing the design. The UK Intellectual Property Office (UKIPO) has indicated that the current system is very likely to change, and the on-going consultation seeks to gather views on a range of possible improvements to the system. This article looks at the changes being considered and the inevitable consequences this will have for honest users of the UK designs system.

Bad faith design registrations

A design registration in the UK is intended to protect new and distinctive designs. However, the UK designs system has no form of substantive examination, meaning the UKIPO cannot object to a design that is not new at the point of registration, no matter how blatant it is that the person filing the design does not have the right to the protection they are applying for.  

This lack of examination, coupled with the very low cost of filing UK designs, has led to an increasing problem of registering designs being filed that do not belong to the person filing them. With the rise of online commerce platforms that will readily takedown product listings in the face of an apparently-valid IP right, this opens the door for bad faith filers to game the system and block legitimate businesses from trading to gain an unfair advantage.   

Internal analysis by the UKIPO found that approximately 9% of registered designs sampled over a six-month period were not new, highlighting the scale of the issue. The UKIPO recognises that only some of these registrations may be anti-competitive or filed in bad faith, but the scale of the issue is nonetheless prompting the UKIPO into action.

Although there are already mechanisms by which invalid designs can be challenged and revoked, the cost and time this can take can be a significant burden to companies impacted by bad faith filings, and so the UKIPO is considering what measures could be introduced to reduce this burden. The problem:

Options under consideration

The UKIPO’s consultation sets out several options to address the problem of bad faith designs, focusing on three main areas:

1. Search and examination
2. Bad faith provisions
3. Opposition/observation periods

The UKIPO has indicated that it is very likely to introduce provisions in at least one of these areas, and is also consulting on the prospect of a combination of options.

1. Search and examination

The first change being considered by the UKIPO is to introduce some form of search and examination, which would deal with bad faith filings that are not new or overly similar to existing products by allowing the UKIPO to object on the basis of earlier known designs. The UKIPO has ruled out reintroducing full search and examination for all designs, with the two main options under consideration being: 1) discretional powers to search and examine an application and 2) a two-stage filing system.

Option 1: Powers to search
This option would give the UKIPO powers to investigate and object to designs suspected of lacking novelty or individual character of its own accord. Searches would be carried out only in specific circumstances, such as when an examiner suspects a filing may be anti-competitive, or for re-filings of previously invalidated designs.

Option 2: Two-stage system
The second option under consideration is to introduce a system where designs are “partially registered” without a search, but a full search and examination is required for the design to be “fully registered” so that enforcement can take place.

Implications for businesses
Both options being considered by the UKIPO would take at least some of the burden of dealing with bad faith filings off the shoulders of third parties. However, this will also inevitably introduce complexity and potential delays for businesses registering their own designs in good faith. The UK designs system is well-known for providing registered protection quickly, and it is not clear how much this will be impacted by the additional work the UKIPO must undertake under each of these proposed schemes.

Discretionary searching powers would, for the most part, retain the speed and low cost of the current system for honest users, with minimal disruption to current filing costs and timescales, while at the same time providing a mechanism for the UKIPO to address anti-competitive filings. There are questions marks, however, over how and when the UKIPO will choose to exercise this discretion. Tuning this approach to have a significant impact on bad faith filings without this turning into a full-blown search and examination system could be a challenge for the UKIPO.

A two-stage system would minimise disruption in the majority of cases where applicants are seeking to get their designs “on file” with no imminent expectation of litigation, and could prevent abusive practices like bad faith take down notices on online commerce platforms by requiring these designs to have undergone the second stage examination process. However, this is just as likely to put up barriers to honest businesses who find copycat products on online marketplaces. Companies will therefore have to decide whether to undergo the second stage in anticipation of potential infringement, potentially dramatically increasing costs of managing their design portfolio, or accept that they will not be able to immediately deal with suspected infringements when these are first spotted.

Overall, a system that introduces a form of search on every design filed, but that limits effect on registration speed seems most fair. This would also be least susceptible to a subjective assessment while limiting friction when it comes to enforcement

2. Bad faith provisions

An alternative approach being considered is to provide an explicit “bad faith” mechanism in the law, allowing the UKIPO to object to applications made with dishonest intent. The UKIPO’s thinking here appears to be to mirror the bad faith provisions that exist already under UK trade mark law.

This UKIPO sets out that this provision could allow them to object to applications for well-known products, those using another company’s product photographs, re-filings of previously invalidated designs, and other anti-competitive applications.

Implications for businesses
In our view, a bad faith provision would be much less clear than some form of search and examination. Trade mark law must contend with issues like trade mark “squatting”, involving registering a trade mark with no intention to use, and “evergreening”, in which sanctions for non-use are avoided by repeatedly re-registering the same mark. These, almost by definition, require consideration of the intent of the applicant and justify the need for a subjective assessment as to whether an application is made in bad faith. On the other hand, the abuses being considered by the UKIPO in relation to the designs system mainly come back to the same question of whether the applicant is attempting to register a design that is new and has individual character, which will require some sort of search for earlier designs. Although it may ultimately lead to the same result as search and examination, a bad faith provision is likely to lead to more uncertainty for applicants, and greater difficulty in contending with erroneous bad faith objections if these do not need to be evidenced using earlier known designs. 

3. Opposition and observation periods

The UK designs system does not currently allow third parties to oppose a registration or provide observations during an examination process. Any objections must currently be raised through invalidation proceedings after registration. The UKIPO is therefore considering the options of pre- or post-registration opposition, or an observations period.

Option 1: Post-registration opposition
This option would introduce a period after registration during which third parties can oppose the design. The design would be “registered at risk” and published, with a window for third parties to oppose. 

Option 2: Pre-registration opposition
A second option would allow opposition after examination but before registration. Designs would be published in the designs journal, and third parties would have a period to oppose before the design is registered.

Option 3: Observation period
The final option under consideration is to introduce a pre-registration observation period, allowing third parties to make observations without becoming a party to the examination process. The UKIPO could then object to a design based on these observations.

Implications for businesses
Opposition and observation periods (at least if implemented alone) would leave third parties with the burden of dealing with bad faith filings, although would aim to improve the tools available to do so. Each of these options, however, is time limited, meaning that companies may need to regularly police filings and identify risks to their commercial activities if they want to make use of these new mechanisms, which would be a significant administrative burden. 

It is also questionable what advantages a post-registration opposition period would provide over the existing invalidation process, which is not time limited and bears low official fees. The implementation of two parallel and very similar invalidation options is likely to confuse more than help most, and abusive takedown practices could persist even through the opposition period.

A pre-registration opposition or observation period would at least allow third parties a mechanism to stop abusive filings being registered in the first place, but at the same time would open up a new avenue for abuse. In particular, competitors could seek to delay an honest user of the system from registering their design by filing speculative or dishonest oppositions or observations, which could just as easily delay the honest use of online commerce platform takedown tools.

Conclusion

The UKIPO’s review of the designs system is a timely response to the challenges posed by bad faith design registrations. The options under consideration aim to strike a balance between protecting genuine designers and supporting businesses, while minimising administrative and financial burdens, but each will come with its own downside for honest users of the UK designs system.   

UK businesses should engage with the consultation to ensure their voices are heard and that the future designs system meets their needs. Details of the consultation can be found on the UKIPO’s website. For those looking to contribute, the consultation closes on 27 November 2025.

If you would like to discuss your response to this consultation with us, or would like to discuss design protection more generally, please contact your usual GJE attorney, or email gje@gje.com.