Designs Concepts Flashcards
Learn the basic concepts for Designs
What is a design?
A design can be the appearance of something:
- 2D or 3D
Can be a:
- drawing
- photograph
- writing
- product or prototype
Types of design
Functional
Functional and aesthetic
Aesthetic
Artistic works exploited industrially
Harmonisation of designs
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.
Overlap with patents?
Designs protect an embodiment rather than and idea.
Overlap with copyright?
s.236 and 51 of CDPA means that an act cannot infringe both copyright and design right.
Artistic works covered by copyright protection
• 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
Copyright of design documents s51
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.
Sculptures
Lucasfilm v Ainsworth
- 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
Engravings
HiTech Autoparts v Towergate
Rubber mat moulded from metal plates held to be an engraving
Works of artistic craftsmanship
Words “irrespective of artistic quality” missing from statute.
May be limited to handmade articles (“craftsmanship”)
Surface Decoration
Dyson v Qualtex
Survives the effect of s51 because it is not a “design”
Decoration excludes surface features which have significant function.
Meaning of “Design document”
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.
UKUDR subsistence
Subsists in any designs which are:
- Original (Farmer’s Build)
• Not copied
• Not commonplace - applies to overall design, not individual elements (Ocular Sciences)
UKUDR covers…
“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
Exclusions to UKUDR
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.
Must fit exclusion
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.
Must match exclusion
Aimed at spare parts market.
Not enough that the public prefers an exact copy
More design freedom = less room for exclusion.
Originality of UKUDR
Not original if it is commonplace in the design field.
To be construed in the copyright sense.
Not commonplace (UKUDR)
“Would not excite those in the particular art” (Ocular Sciences)
Commonplace assessment takes place once all excluded features stripped away.
Qualification for UKUDR
Either through:
- desinger (or employer)
- place of first marketing
Ownership of UKUDR
- designer (creator) is first owner
- unless employee, then employer
- if design is protected by first marketing, then the person who first marketed it
Duration of UKUDR
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.
Primary infringement of UKUDR
- 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.
Secondary infringement of UKUDR
- Import (for commercial purposes)
- possess articles (for commercial purposes)
- sell, let, expose for sale etc in the course of business
Knowledge requirement.
