Design Principles Flashcards
What types of protection can one obtain for design and which rights fall under such protection?
Monopoly-based rights
- UKRD
- RCD
Copyright-based rights.
- UKUDR
- URCD
Which design rights protect shape (3D) and which protect decoration (2D)?
Shape and Decoration
- UKRD
- RCD
- URCD
Shape Only
- UKUDR
How long does the term of protection last for UKRD, UKUDR, RCD and URCDs?
UKRD = 25 years
UKUDR = 10-15 years
RCD = 25 years
URCD = 3 years
What additional class of rights comes under UKUDR and what’s so special about it?
Semiconductor Topography rights. They are the allowed to be purely functional!
UKUDR begins where ‘what’ ends?
Copyright.
CDPA 51 defines the upper limit of copyrights at the copyright/design boundary and CDPA 213 defined the lower limit of UKUDR from the boundary.
What does ‘configuration’ refer to in CDPA 213(2)? Are there any limits to this?
Configuration = The relative arrangement of an article’s elements. [Mackie Designs v Behringer]
The relative arrangement of colours does not constitute configuration, however. [Lambretta v Teddy Smith]
What is a ‘design document’?
A design document is any record of a design, whether by drawing, written description, photograph, data, ort otherwise.
What criteria might a document meet in order to be considered a ‘design document’?
At the material time, it must have been intended to form the basis for making the article.
However, this remains contraversial
How has CDPA 213(2) changed over time and what have been the implications?
CDPA 213(2) used to define a design as ‘any aspect of’ a design or configuration, external or internal, in whole or in part.
‘any aspect of’ has now been removed.
The impact of the removal was discussed in DKH Retail v H Young and Whitby Specialist Vehicles v Yorshire Specialist Vehicles. In these cases they discussed distinguishing the ‘merely recognisable’ features from the ‘concrete’ parts of the design. Ultimately, the change meant abstract designs were removed from protection under UKUDR, as noted in Action Storage v G-Force.
What do we mean by ‘surface decoration’?
- Neptune v Devol Kitchens*: Surface decorations includes surface features
- Lambretta v Teddy Smith*: Surface decoration includes decoration that runs through the article
- Dyson v Qualtex: Surface decoration *does not include functional deatures.
What bit of caselaw relates to CDPA 213(3)(a)?
CDPA 213(3)(a) tells us that design right does not subsist in methods/prinicples of construction.
The most relevant caselaw is Bailey v Haynes which was about a mesh bag that could only be produced by a particular knitting pattern. UKUDR protection of such a design would monopolise on a method of construction, but just like the idea/expression copyright dichotomy we need clarity and boundaries.
The second most relevant caselaw is Magmatic v PMS, who were able to use multiple UKUDRs to protect internal features, but the external shape of the case was rejected on the grounds that it would confer protection to a method/principle of construction.
Discuss the reasoning behind CDPA 213(3)(b)(i)
CDPA 213(3)(b)(i) says that any features of a shape or configuration of an article that serves a functional purpose, that is to enable it to connect with, be place in, around or against, another article such that either article can perform its function cannot be conferred a design right.
This is commonly referred to as the ‘must fit’ criteria
One effect of this is to ensure that spare parts can be made for designs that are protected as a whole without such spares constituting design right infringement. Relevant caselaw is Dyson v Qualtex, where the courts clarify that any intention for an interface fit excludes design rights.
Discuss the reasoning behind CDPA 231(3)(b)(ii)
CDPA 231(3)(b)(ii) says that design rights do not subsist in features of a shape or configuration that are dependent on the appearance of another article for which it is intended to be an integral part of.
This is commonly referred to as the ‘must match’ criteria.
The effect is to exclude spares, which do not neccessarily include fitting interfaces but do need to match the overaching design, from design right protection. In Dyson v Qualtex, the courts concluded that one would have to consider whether the appearance of the overarching article would look radically different if the spare part did not match in shape.
How is originality assesed in accordance with CDPA 213(1)?
Originality used to follow the EW court’s approach to copyright originality, requiring labour, skill and/or judgement. This was how the Bailey v Haynes method of construction bait bag desgn was assessed. However, in light of the EU’s approach to copyright originality there has been some differences in approach to originality of UKUDRs. In Whitby Specialist Vehicles v Yorkshire Specialist Vehicles, they applied the AOIC test, however in Action Storage v G-Force, the courts felt that the use of the UK or EU test was still to be determined and might yet yield the same result.
In addition, minor incremental changes to a design do not make the overarching design wholly original again (Neptune v Devol Kitchen).
Finally, orginality does not require novelty, which has not place in UKUDR.
How does one assess whether or not a design is common place?
Prior to October 2014, commonplaceness was only judged by the UK. It now extends to qualifying countries, as per CDPA 213(4).
In Farmers Build v Carrier Bulk, the courts provided a method for determining commonplaceness.
- Compare it with other articles in the same field at the date of creation.
- Compare each aspect of the similarities and differences with other aticles in the field.
- Be careful to filter out similarities due to direct copying or functional design constraints.
