A New Dawn for UK Design Law?

Design law in the UK is once again in the spotlight. In September, the UK Intellectual Property Office (UKIPO) launched its latest Consultation on changes to the UK design framework (expanding upon, and adding to, some of the issues raised in the previous consultation “Reviewing the Designs Framework”, which took place in 2022).

It comes as no surprise that the sheer complexity of the design protection system is one of the key issues on which the Consultation seeks views. The twin-blades of unregistered designs (so-called UK unregistered design rights and the Brexit-birthed Supplementary Unregistered Design) currently sit alongside UK registered designs and International Registered Designs in the Swiss-army knife of possible protection in this arena. This is not to mention the prospect of any assistance that trade mark law may offer to such subject matter, or indeed the shadowy presence that copyright may bring to the party. In respect of the latter, the inherited pre-Brexit copyright jurisprudence of the Court of Justice of the EU suggests that practically any product form – barring only the most technical – should be eligible for full copyright protection – the whole life plus 70 years of it. Such case law, in turn, also contributed to removal of the deliberate demarcation between copyright and design protection that the UK legislature had originally placed within the Copyright, Designs and Patents Act 1988 following various issues with car exhausts in the early 1980s. A question then arises: given the UK’s relatively newly-minted footloose status, should we remain in alignment with the EU, or revert to a position closer to that in place before the original Design Directive?

Practical questions also feature. Thus, while acknowledging that responses to its previous consultation expressed the view that the UK design registration system is quick and inexpensive, the UKIPO also notes that its lack of any pre-grant checks for novelty and individual character has created problems. Increasing numbers of ‘bad faith’ registrations have also resulted in a backlog of invalidity applications. Accordingly, good faith actors incur not insignifncant costs to remove junk designs and respond to threats of infringement. How then to strike the right balance between maintaining the speed and flexibility that designers value, while improving the quality and enforceability of design rights?
The Consultation’s proposals aim ‘to create a designs system fit for the future … and better able to support UK creativity and innovation in a rapidly evolving digital landscape’. It suggests changes clarifying that graphical user interfaces and animations are eligible for design protection, as well as other steps to clarify the scope of protection sought. Perhaps surprising for some, the UKIPO is also recommending that AI-generated designs should not be eligible for design protection.

The UCL Institute of Brand and Innovation Law has brought together a distinguished panel to consider which path UK design law should take. Is UK design law still at the crossroads, or are we witnessing an exciting new dawn?

Find out more about what is included within the proposals (and perhaps, what else should have been included), and add your voice to this important debate.

Speakers (in order of appearance):

• Jeff Lloyd, Deputy Director Trade Marks and Designs Policy, UKIPO
• Jane Cornwell, Senior Lecturer in IP Law, University of Edinburgh
• Nina O’Sullivan, Partner, Mishcon de Reya LLP

Chair: David Stone (Partner, White & Case LLP and Deputy High Court Judge)

17:30 Registration and theatre opens
18:00 Event begins
19:15 Q&A
19:30 Reception
This event will be held in-person but will also be live streamed.

Fees for this event are from £8-£35
Free places for UCL students and staff, full time academics, judiciary and government legal services.

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Host or Publisher UCL Institute of Brand and Innovation Law (IBIL)