Under EU design law, products first disclosed in the EU may automatically generate unregistered design rights (UDR), providing protection for their appearance within each EU member state. With the UK’s departure from the EU, it has had to decide how it will respond to the fact that this EU right will no longer be generated or provide protection in the UK.
We have already seen that the UK government has promised a new type of unregistered design right for the UK – the supplementary unregistered design right – to replace in the UK the unregistered right previously generated under EU law. However, with this effectively producing two competing unregistered design systems, by itself this would have led to the result that disclosures in the UK would provide protection in the UK but preclude protection in the EU and vice versa, making it more difficult for designers to rely on unregistered rights.
Now, the UK government has made public their draft of a UK-EU Comprehensive Free Trade Agreement, which reveals their proposals for effectively rebuilding the unregistered system that was previously provided when the UK was part of the EU. In this document, the UK proposes a reciprocal system, whereby both parties agree that disclosure of a product in either the UK or EU will generate both UK supplementary unregistered design rights and EU unregistered design rights.
The motivations for this on the UK’s part are clear. Without such a system, there will be a clear incentive for businesses to disclose (and so perhaps manufacture) their products first in the EU, i.e. to provide protection in 27 countries, rather than only 1 had they disclosed first in the UK. It will be interesting to see whether the EU agrees to reciprocal system proposed by the UK, which would certainly provide minimal disruption to European businesses, or whether they will seek to retain the advantage that would otherwise be provided by the competing systems.
If you would like to discuss your companies designs rights contact Chris via Chris.Anderson@gje.com