The UK has finally implemented the Designs Directive. The new regulations made under the Directive - The Registered Designs Regulations 2001 - have their first working day in force today. In order to accommodate the Directive's intended harmonisation of design laws across the Community, the process of registration of designs in the UK has had to change in some significant ways:
1. Worldwide novelty requirements
To be registrable, a design will now have to be novel worldwide (rather than just in the UK) i.e. it cannot be the same as any disclosed design anywhere in the world. However, prior disclosures that the applicant can prove are too obscure to be known to any designer in the relevant field can be ignored. An example given by the Patent Office is that of a jewellery designer's design not being refused because, quite by chance, it was found to be the same as some jewellery in a remote museum.
2. "Individual Character" required
This is a completely new test. The design must not just be different from other designs its must be significantly different from them in the eyes of the "informed user" - not a skilled design expert but rather a regular user of the products in question. As the Patent Office explains in its guidance, if "the product produces the notion of "dÈj‡ vu", it will fail as being too similar to another item and thereby lack individual character".
3. No requirement for the application of the design to an article or for industrial manufacture
The old law only allowed registrations where a design was applied to an "article" and the registration was specific to that particular article. Now the design itself will be protected, whatever the article to which it is applied. Under the old law there was also a requirement for the design to be applied to an article of manufacture or by an industrial process. Such considerations will now no longer be relevant.
Of particular interest to people engaged in the field of IT is the possibility of registration of icons appearing on a computer screen, the Regulations expressly providing for the registration of "graphic symbols" and "typographic typefaces". A design registration will provide protection without the need to show copying (in contrast to the position in copyright).
4. Protection affordable to parts of products
Under the old law only an element of a product with an "independent life of its own" could be registrable as a design. Now however component parts are registrable as...