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UK's designs framework: a call for views on shaping the future

Posted on 2 February 2022

We recently explained here that in January 2022 the UK Intellectual Property Office (UKIPO) published a Designs Framework Survey seeking views from designers on the UK designs system. The UKIPO has now also published a Call for Views, which seeks feedback (albeit on a more detailed level) on what works well in the current UK designs framework, and what could work better, in order to enable the Government to decide whether there is a need for legislative action.

The introduction to the Call for Views makes clear that the purpose of the Government's review of the current system is to ensure that the UK's designs framework is "fit for the future" and allows IP to "incentivis[e] innovation", giving the UK a "competitive edge". The UKIPO frames the opportunity for reform by reference to the UK's departure from the European Union, which has afforded the UK "new flexibilities" to define its domestic design regime ahead of negotiating trade deals with international partners.

The Call for Views explores some specific aspects of the designs framework against this backdrop:

  • Registered designs: search and examination: Since 2006, to harmonise practices with the EU, the UKIPO has not carried out checks as to whether a design application is "new" and has "individual character" before allowing it to proceed registration. In light of increased use of online platforms and search technology, it suggests this may no longer be appropriate. The UKIPO seek views on whether the UK should reintroduce novelty searching, as well as a corresponding examination covering validity requirements (possibly to include an opposition period). The UKIPO cites identification of anti-competitive registrations as a possible argument in favour of reintroducing these requirements.
  • Simplifying the designs system/overlapping rights: A single design may feasibly be protected by a number of overlapping types of design protection in the UK (in addition to copyright). Post-Brexit, these include registered design protection, supplementary unregistered design protection, continuing unregistered design protection and UK unregistered design right protection.
    The UKIPO seeks views on how this patchwork of protection can be simplified whilst striking the all-important balance between encouraging investment in design whilst ensuring that competitors can, in light of the current complexities of an overlapping system, properly assess their freedom to operate.
  • Unregistered design rights: Views are sought on how to simplify the regime for the two types of unregistered design right protection that currently exist in the UK (supplementary unregistered design, and unregistered design) including in respect of the spare parts exemption.
  • Definitions: The UKIPO seeks guidance on whether certain terms in the Registered Designs Act would benefit from clarification, including the meaning of the term "get-up" (which is currently protectable as an unregistered design).
  • Disclosure of supplementary unregistered designs: The UKIPO seeks views on the important issue of simultaneous or reciprocal first disclosure of products in the UK/EU to ensure that a first disclosure in the UK does not preclude that design being protected as an unregistered community design in the EU and vice versa. Due to existing uncertainties over the rules for first disclosure, designers may face a gap in protection, and so some clarity in relation to this issue will be welcome (albeit it is an area where there may ultimately need to be discussion with the EU).
  • Future technologies: The UKIPO is interested to hear ideas on how to "future proof" the current design system in light of emerging technologies that, for example, affect the way designs are created and used. This is an interesting conversation that may interact with questions on authorship of copyright works when the underlying work is created by artificial intelligence – a topic upon which the UKIPO is also consulting, as we discussed here. The UKIPO wants to ensure that the designs framework encourages the development and use of such tools in design creation, which include the creation of digital designs such as avatar content in online gaming. Topics for discussion under this umbrella include (1) the balance of human versus computer-generated designs; (2) the protection of transformable designs; and (3) whether the UKIPO should accept 3D and dynamic representations of designs.
  • Deferment provision for designs: Views are sought on whether the current period of 12 months during which a design applicant can defer publication of their design is sufficient or whether this should be longer or shorter. The maximum current period of deferment in the EU is 30 months.
  • Enforcement: The UKIPO wants to hear views on the effectiveness of the UK's enforcement framework and how it can be improved to help small businesses and individual designers enforce their rights more easily.

The Call for Views seeks responses on a wide range of interesting and topical questions which, depending on the nature of the responses and any legislative changes that are implemented as a result, have the capacity to drastically change the future of the UK's design system.   

Responses to the Call for Views, which are due by 25 March 2022, can be made by filling in the response form.

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