Changes to unregistered designs after Brexit

Guidance for businesses who have unregistered Community designs.

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After Brexit, unregistered Community designs (UCDs), will no longer be valid in the UK.

On exit day, these rights will be immediately and automatically replaced by UK rights.

If you own an existing right, you do not need to do anything at this stage.

Continuing unregistered design

Designs that are protected in the UK as an unregistered Community design before exit day will be protected as a UK continuing unregistered design and will be automatically established on exit day.

It will continue to be protected in the UK for the remainder of the 3 year term attached to it.

The fact that a corresponding unregistered Community design was established before exit day through first disclosure in the EU but outside of the UK will not affect the validity of the continuing unregistered design.

Supplementary unregistered design

You should carefully consider how, when and where you first disclose your designs in order to establish unregistered protection in the UK and the EU.

Under the new law, we are creating a UK unregistered design right called Supplementary unregistered design (SUD).

This right will ensure that the full range of design protection provided in the UK before exit day will remain available after we leave the EU.

The terms of supplementary unregistered design protection will be similar to that already conferred by unregistered community design. However, the protection it provides will not extend to the EU.

Supplementary unregistered design will mirror the UCD by providing post-exit UK protection for both 3-and 2-dimensional designs.

SUD will be established by first disclosure in the UK or another qualifying country. It will be subject to interpretation by the UK Courts.

First disclosure in the EU will not establish SUD. However, it may destroy the novelty in that design, should you later seek to claim UK unregistered rights.

Exhaustion of intellectual property rights

Intellectual property rights give a right holder certain exclusive rights. These include the right to control distribution of the product.

The exhaustion of intellectual property rights refers to the loss of the right to control distribution and resale of a product after it has been legitimately put on the market in a specific territory, currently the EEA.

Exhaustion of intellectual property rights is covered by a separate statutory instrument that has been approved by Parliament. See The Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2018.

Provisions relating to the exhaustion of supplementary and continuing unregistered design are included in this statutory instrument.

These provisions are consistent with those contained in the Exhaustion statutory instrument. They maintain the existing approach by setting out that the question of whether a product has been lawfully placed into free circulation will be assessed in relation to the same geographical area, that is the EEA and the UK.

UK design right

UK design right will continue after exit day and will function alongside continuing and supplementary unregistered design.

It will continue to provide protection for the shape and configuration of 3-dimensional articles for up to 15 years from the end of the year in which the design was first recorded or a corresponding article was first made.

Current law states that a UK design right can be established in the following circumstances:

  • by an individual who is resident in the EU
  • by a business formed under the laws of an EU member state
  • where first disclosure of the design occurs in an EU member state

This means that activity inside of the EU but outside the UK can be sufficient for establishing UK design right.

The qualifying criteria for UK design right will change on exit day. This will create consistency with the new supplementary unregistered design, and avoid an imbalance between UK and EU designers.

Qualification for the right will be limited to:

  • people resident in the UK or a qualifying country
  • businesses formed under the laws of the UK or a qualifying country

Where qualification is a result of first marketing, you will need to have disclosed your design in the UK or a qualifying country.

Published 18 October 2019