protect their exclusive production of spare parts for
their vehicles.
The 1988 Act abolishes copyright protection for
drawings but gives instead a new design right which is
automatically acquired and does not require registra-
tion. It lasts for 10 years from the end of the year when
the article is first marketed or 15 years after it was first
designed, whichever period is the first to expire. During
the last five years of its life anyone will be able to get a
licence to make the article by paying a royalty to the
owner at a rate to be determined by the Patent Office in
the absence of agreement.
The Act excludes from the new right items which
‘must fit’ or ‘must match’, e.g. an exhaust system which
‘must fit’ a particular car or a body panel which ‘must
match’ a particular car body. The exclusions are there-
fore those features of a design which are made to ensure
that it fits or matches with another part. These exclu-
sions will, in the main, deny protection to car manufac-
turers in regard to spare parts for their vehicles and
prevent what many regarded as the use of intellectual
property law to sustain a restrictive practice.
Nevertheless, other aspects of a design are covered.
Application is made to the Office for Harmonisation
of the Internal Market in Alicante. After registration the
design is published in the Community Designs Bulletin.
However, applicants can ask for publication to be de-
ferred for 30 months where it is felt that publication
might otherwise adversely affect the commercial success
of the article. Organisations that have applied for design
rights on a national, e.g. UK, basis have priority when
they apply for a new registered Community Design Right
for the same design. It is six months’ priority from the
date of first filing.
United Kingdom applicants may file community
design rights applications through the UK Patent Office.
2 Unregistered Community Design Right. Regulation
6/2002 also brought in a new unregistered design right
from March 2002. The UK now has two separate design
rights.
The EU right lasts for only three years from when the
design was first made available to the public in the EU.
This contrasts with the UK right which lasts for 10 years.
It protects designs that are new and of individual charac-
ter. A design is deemed new if when it becomes available
to the public it is not identical to an already existing design.
The right is applicable to the whole of the product and
includes its ornamentation. A design on a product will
not be protected unless it remains visible during the
normal use of the product. The EU right differs from the
UK right since the latter lasts for 10 years and does not
protect surface ornamentation.Copyright
The 1988 Act does not require the owner of a copyright
to register it or to follow any formalities in respect of
it. The protection is given by the Act to every original
literary, dramatic, musical and artistic work which was
previously unpublished.
Copyright does not protect ideas. Anyone is entitled
to incorporate those ideas in a new work provided that
substantially the same words and examples are not used.Ownership and duration
The author of the work is the owner of the copyright.
However, it may be a term of the contract between, say,
a newspaper company and its journalists that the entire
copyright in the journalist’s work is to belong to the
newspaper company.
Under the Act, protection of copyright existed in a
work during the lifetime of the author of it and until thePart 4Business resources
434
Example
Suppose that the open end of a replacement bag for a
‘Hover’ vacuum cleaner needs to be of a particular shape
to fit the end of the hose of the ‘Hover’. Anyone can copy
this part of the ‘Hover’ bag but it would be an infringe-
ment of the ‘Hover’ bag design to copy other aspects of
its shape which were not essential to the fitting of the
‘Hover’ bag.
The shape of the ‘Hover’ bag should now also be reg-
istrable as a trade mark under the Trade Marks Act 1994.Infringement
The owner’s remedies for infringement are to apply to
the court for damages, an injunction and for delivery-up
of infringing materials.
Designs: the Community regime
1 Community Registered Designs.Regulation 6/2002
on Community Designs came into force on 6 March 2002.
It provides for a registrable design right that applies across
all EU states. It lasts for renewable periods of between
five and 25 years as does UK design law.