Designs Flashcards
What is the protection given by UKUDR?
s.213 CDPA 1988:
(1) Copyright-type protection,
for (2) original designs which are not commonplace
of (3) 3D shapes only (shape or configuration, not surface decoration)
(4) lasting 15 years from recordal of design or manufacture of first article, or 10 years from articles according to the design being made available.
(5) (license of right available in last 5 years)
What is the protection given by RCD, and UK Registered Designs?
s.1 and 1B RDA 1949:
(1) Monopoly-type protection,
for (2) designs which are new and have individual character
where a design is (3) the appearance of the whole or a part of a product resulting from the features of the product or its ornamentation (so both 2D and 3D shapes)
(4) for a max of 25 years from filing.
What is the protection given by UCD?
Copyright-type protection, for 3 years from first marketing.
What is the design protection afforded under copyright in the UK?
For 2D designs (surface decoration):
(1) As a graphic work, a design of surface decoration has
(2) protection against copying,
(3) either directly or indirectly (s.16 CDPA),
(4) including from 2D to 3D or 3D to 2D.
For 3D designs: s.51 CDPA 1988:
(1) There is no infringement of copyright in a design document embodying any aspect of the shape or configuration of the whole or part of an article
(2) unless the article is itself an artistic work (e.g. sculpture) or a typeface.
(3) The essence of a sculpture is that it has the purpose of being enjoyed for its visual appeal alone. (Lucasfilm v Ainsworth).
What was Lucasfilm v Ainsworth (High Court, affirmed in Court of Appeal and Supreme Court) about?
(1) Lucasfilm had made stormtrooper helmets based on sketches, as props for a film. Ainsworth made reproductions of the stormtrooper helmets. Lucasfilm sued for copyright infringement.
(2) The court decided that there was copyright in the sketches and that they were design documents, because the intention of the designer was that they be followed as closely as possible.
(3) The court decided that the helmets were not sculptures, because they were not intended to be enjoyed for their visual appeal alone.
What are the four exclusions to UKUDR?
s213(3) CDPA 1988:
(a) a method or principle of construction
(b) features of shape or configuration of an article which
(i) enable the article to be connected to, or placed in, around or against, another article so that either article may perform its function (must-fit), or
(ii) are dependent upon the appearance of another article of which the article is intended by the designer to form an integral part (must-match)
(c) surface decoration
What is the must-fit exclusion to UKUDR?
s. 213(3)(b)(i):
(1) features of shape or configuration of an article
(2) which enable the article to be connected to, or placed in, around or against, another article
(3) so that either article may perform its function.
(except connection of mutually interchangeable products within an modular system)
What is the must-match exclusion to UKUDR?
s. 213(3)(b)(ii):
(1) features of shape or configuration of an article
(2) which are dependent upon the appearance of another article
(3) of which the article is INTENDED BY THE DESIGNER to form an integral part.
What was Neptune v DeVol Kitchens (2017, High Court) about?
(1) Neptune and DeVol were both manufacturers of kitchen furniture. Neptune alleged that DeVol had copied its modular kitchen range, so that it infringed its UKUDR and RCD rights.
(2) The furniture had cock-beadings and mouldings. The Court held that it was a value judgement for the judge to decide whether a feature was sufficiently three-dimensional to fall outside the surface decoration exclusion.
(3) The removal of ‘any aspect of’ in the Intellectual Property Act 2014 was applicable to all infringements after the Act came into force, but did not extinguish accrued rights of action for infringements before the Act came into force.
(4) It is allowable to define ‘a part’ of the design by exclusion of certain other parts.
(5) What DeVol had copied was merely the idea of saw-tooth shelving and curved end cabinets, and not the cabinets themselves. What had been copied was therefore at the level of abstraction of a ‘principle or method of construction’ and was not protected.
What was Dyson v Qualtex (2006, Court of Appeal) about?
(1) Dyson sued Qualtex for infringing UKUDR in various spare parts for vacuum cleaners.
(2) The Court held that the must-fit exclusion did not necessarily extend to spacing between parts, but only if the spacing was itself intended as a feature that enabled connection, or placing in, around, or against.
(3) The Court held that the must-match exclusion only applied if, as a practical matter, there was no design freedom because adopting a different design would have led to a radically altered appearance. It was not enough to assert that the public would prefer an exact copy, because they always will.
(4) The Court held that surface features with significant function were not surface decoration, though they could be if the function was insignificant.
What was Ford and Fiat’s Design Applications about?
(1) Ford and Fiat registered a set of designs for parts of cars.
(2) The Registered Designs Appeals tribunal held that vehicle parts that formed part of the body of the car were not ‘articles’ in their own right apart from forming part of the whole car.
(3) Moreover, they were excluded by must-match; this applied to parts such as main body panels, doors, bonnet lid, boot lid and windscreen.
(4) However, some other parts were subsidiary to the car, such as the wheels, external mirrors, seats and steering wheel.
What is primary infringement of UKUDR?
s. 226 CDPA:
(1) Making articles to a design, or
(2) making a design document recording the design
(3) for the purpose of enabling such articles to be made,
(4) for commercial purposes,
(5) where making articles to a design means copying the design so as to produce articles exactly or substantially to that design.
What is secondary infringement of UKUDR?
s. 227 CDPA:
(1) Importing for commercial purposes, or
(2) having in possession for commercial purposes, or
(3) selling, letting for hire, or offering or exposing for sale or hire, in the course of business,
(4) an article which is, and which he knows or has reason to believe is, an infringing article.
What are the innocent infringement provisions of UKUDR?
For primary infringement, innocent infringement means no damages.
For secondary infringement, innocent infringement means you can only get a reasonable royalty and no other remedies.
How is a design defined, in the context of a UK Registered Design?
The appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product or its ornamentation.
