Unregistered design right (UDR) is a form of IP right which exists in selected territories including the UK and the European Union (EU). As with registered designs, UDR protects only the appearance of a product and not how it functions.
UDR is distinct from registered designs primarily because no application procedure exists: UDR subsists automatically upon the creation of a qualifying design. As compared with registered designs this has the obvious benefit of no up-front costs. Another significant benefit is the ability to select which aspect(s) of the design UDR is to be claimed in only once the alleged copying article has been seen. In other words you can take advantage of hindsight in a way that is not available with registered designs.
However, UDR can only be infringed by articles which have been actively copied from the original: unlike registered designs, UDR is not a monopoly right. As such, successful enforcement of UDR requires evidence of actual copying – the mere fact that the products look alike may well not be enough. Another disadvantage is the relatively short lifetime of UDR: normally 10 years for British UDR and only 3 years for EU UDR. Nonetheless, this can be sufficient for products which themselves have limited lifespans.
UDR is not available in all countries and where it does exist, rules vary widely. British UDR, for example, is only available for protection of three-dimensional articles whilst EU UDR also covers two-dimensional products such as logos, typefaces and the like. British UDR also places restrictions on the countries from which the design must originate in order to qualify for protection. In contrast, EU UDR has no such explicit limitations although leading case law suggests that the product must be disclosed first in the EU in order to benefit from protection.
In summary whilst UDR does have a number of drawbacks, meaning that in many cases it will be more appropriate to obtain registered design protection for a product, its inherent flexibility does lead to it playing an important role in many cases. As such, in recent years, UDR has succeeded in protecting aspects of many types of products where, for reasons specific to each case, corresponding registered design protection has not – the well-known Trunki case is a good example of this.
GJE’s experienced design team can advise on all aspects of UDR and help you navigate this complex area of IP law. If you would like more information, please contact a member of our designs team. View our designs team here by filtering by service.