Designs Concepts

Question 1

What is a design?

Answer 1

A design can be the appearance of something:
- 2D or 3D

Can be a:

• drawing
• photograph
• writing
• product or prototype

Question 2

Types of design

Answer 2

Functional
Functional and aesthetic
Aesthetic
Artistic works exploited industrially

Question 3

Harmonisation of designs

Answer 3

UK RD, RCD, UCD are harmonised in subject matter and scope (except for the need to copy for infringement of UCD).

UKUDR is the odd one out.

Question 4

Overlap with patents?

Answer 4

Designs protect an embodiment rather than and idea.

Question 5

Overlap with copyright?

Answer 5

s.236 and 51 of CDPA means that an act cannot infringe both copyright and design right.

Question 6

Artistic works covered by copyright protection

Answer 6

• Graphic work
- painting, drawing, diagram, map, chart, plan
- engraving, etching, lithograph, woodcut or similar
• Photograph
• Sculpture
- Cast or model made for purposes of sculpture
• Collage
All of the above are irrespective of artistic quality

• Work of architecture
- Building or model for a building
• Work of artistic craftsmanship

Question 7

Copyright of design documents s51

Answer 7

It is NOT an infringement of copyright in a design document or model to make an article according to the design, or to copy an article made to the design.

Design document = record of a design (other than surface decoration) where the design is anything OTHER than an artistic work or a typeface.

Applies to all kinds of designs unless the subject of the design is itself a statutory artistic work.

Question 8

Sculptures

Lucasfilm v Ainsworth

Answer 8

• No judgement on artistic worth
• Should have a visual appeal in the sense that it might be enjoyed for that purpose alone
• The purpose is that of the creator
• Other use doesn’t disqualify as a sculpture, but it still needs to have the intrinsic quality of being enjoyed visually

Question 9

Engravings

HiTech Autoparts v Towergate

Answer 9

Rubber mat moulded from metal plates held to be an engraving

Question 10

Works of artistic craftsmanship

Answer 10

Words “irrespective of artistic quality” missing from statute.
May be limited to handmade articles (“craftsmanship”)

Question 11

Surface Decoration

Dyson v Qualtex

Answer 11

Survives the effect of s51 because it is not a “design”

Decoration excludes surface features which have significant function.

Question 12

Meaning of “Design document”

Answer 12

Key is the purpose for which the sketches were prepared.

Lucasfilm:
painting for a stormtrooper’s helmet was held to be a design document as it would have been followed as closely as possible.

Format doesn’t matter (Abraham Moon v Thornber):
Ticket stamp held to be both literary and artistic work, thus it was infringed.

Question 13

UKUDR subsistence

Answer 13

Subsists in any designs which are:
- Original (Farmer’s Build)
• Not copied
• Not commonplace - applies to overall design, not individual elements (Ocular Sciences)

Question 14

UKUDR covers…

Answer 14

“Design of the shape or configuration (whether internal or external) of the whole or part of the article”.

Shape = 3D things
Configuration = Includes relative arrangement of parts of elements

Question 15

Exclusions to UKUDR

Answer 15

Surface decoration: not limited to 2D surface features but may include features standing out from surface.
E.g. garment colouring going through the whole garment counted as surface decoration (Lambretta v Teddy Smith)
Dyson v Qualtex: surfaces features with a substantial function are not decoration.

Method or principle of construction: similar to expression/idea dichotomy in copyright. Bailey v Haynes: mesh knitted bag for fishing - could only be made in one way, so was essential protecting the method of construction.

Question 16

Must fit exclusion

Answer 16

Features which allow an article to connect to another article so that it can perform its function.

Article includes parts of the human body. (Ocular Sciences)

Doesn’t exclude the whole article, just the part that must fit.

Question 17

Must match exclusion

Answer 17

Aimed at spare parts market.

Not enough that the public prefers an exact copy

More design freedom = less room for exclusion.

Question 18

Originality of UKUDR

Answer 18

Not original if it is commonplace in the design field.

To be construed in the copyright sense.

Question 19

Not commonplace (UKUDR)

Answer 19

“Would not excite those in the particular art” (Ocular Sciences)

Commonplace assessment takes place once all excluded features stripped away.

Question 20

Qualification for UKUDR

Answer 20

Either through:

• desinger (or employer)
• place of first marketing

Question 21

Ownership of UKUDR

Answer 21

• designer (creator) is first owner
• unless employee, then employer
• if design is protected by first marketing, then the person who first marketed it

Question 22

Duration of UKUDR

Answer 22

15 years from end of first calendar year in which:

• design is first recorded in a design document, or
• an article was made to the desing

or

10 years from end of calendar year of first marketing,

which ever is shorter.

Question 23

Primary infringement of UKUDR

Answer 23

• Making articles to that design
• Making a design document for the purposes of making such articles,
• For commercial purposes

Infringement can be direct or indirect.

Scope limited to acts done in the UK.

Because s51 breaks the chain of indirect copying, making a subsequent design document is an infringement of UKUDR, not copyright.

Copying required.

Question 24

Secondary infringement of UKUDR

Answer 24

• Import (for commercial purposes)
• possess articles (for commercial purposes)
• sell, let, expose for sale etc in the course of business

Knowledge requirement.