cfi-The Look and The Law Aug 09:The Look, The Law & The Knowledge 2009 07/09/2009 13:55 Pag
“patented” or “copyrighted” or “trademarked”).
• In fact, some of the more important rights for designers (e.g. unregistered
Community design right and copyright – see below) arise automatically, that is, as
soon as the relevant design or copyright “work” is recorded in any fixed form.
There is no requirement for any positive step of registration, or payment of any
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fee.
• However because these rights are unregistered, you have to take more care to W
document their existence so that you can, if needed in future, prove that you own
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them and enforce them against others.
L
• Some IP rights can also be protected by registration – this gives stronger
protection but generally costs more than unregistered IP rights.
THE
• IP rights are territorial – and usually cover just one country or region. So if you
are doing business and/or manufacturing not just in the UK but also across the
EU or farther afield, you have to consider your protection in those regions too.
• IP rights can be considered as relative and when looking at each, one must
always consider other neighbouring or prior rights – e.g. whether a design is
“novel” over an earlier design, or “original” in the sense of not being copied from
an earlier design, or whether one trade mark is similar to another.
UNREGISTERED IP RIGHTS
UNREGISTERED COMMUNITY DESIGN RIGHT (UCDR)
This was specifically developed for the fashion industry – although it is relatively
short-term, it is very wide in scope.
The right arises in any “design” – which means any feature of the appearance of the
whole or part of a product, arising from (without limit) its line, contours, colours,
shape, texture, materials and/or ornamentation – provided that design is:
• “novel” over earlier designs
• has “individual character”
The date for judging novelty and “individual character” is the date the design is first
made available (read “disclosed”) to the relevant sector in the European Community.
So it is important to keep a new design confidential.
The right only lasts for three years from the date it is first made available or disclosed
to the public in the European Community; however, this will often cover the real
commercial life of many new designs. The term “made available to the public” is
interpreted broadly and in practical terms covers any disclosure not subject to a
confidentiality agreement. Care must be exercised therefore to impose
confidentiality obligations (often called a non-disclosure agreement “NDA”) before
disclosing the design.
Perhaps the best feature of the right is that disclosure of any new design during the
first year of the UCDR does not prejudice the ability to seek registration of it as a
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