We know designs can be integral to the success of a business, an organisation, or a project, so when it comes to protecting them First4lawyers will ensure you get the best advice possible.
Design law is a complex area, and there are various options available in order to bring about a resolution, including legal action.
A legal expert from First4lawyers can help you to take the best course of action, and you can contact us for a free, no-obligation discussion of your circumstances.
What are design rights?
Your designs are protected by copyright as soon as they exist in physical form. They are also protected by ‘design right’, which automatically gives you protection against anyone copying your design for 10 years after you first sell the design, or 15 years after you first created it, whichever is earliest.
However, you can further protect your designs by registering them, giving you exclusive rights for 25 years. They must be new and non-offensive in order to be registered, and they must not make use of protected emblems or flags. If your work is two-dimensional, such as a graphic or textile design, then you must register it in order to protect it.
By registering a design, you protect its appearance, physical shape, arrangement and decoration against copying. But you need to renew it every five years, in accordance with government guidelines.
Default ownership of unregistered design rights belongs to the designer, and not to any person or company who has commissioned the designer to create the work.
What is design infringement?
If someone takes your design and puts in on the market, imports it, exports it, or stocks it without your permission, you may be able to raise a case of design infringement against them.
On October 1st 2014, the government brought into effect provisions of the Intellectual Property Act 2014, which meant that criminal sanctions could be made against anyone found to have intentionally copied registered designs made after October 1st 2014.
What are the penalties for design infringement?
Since the change in legislation, anyone who is found guilty of copying a registered design, when they knew or had reason to believe the design was registered, can face a substantial fine and a prison sentence of up to 10 years.
For infringement of unregistered designs, court action is still possible, and anyone found guilty can be made to pay compensation by the court.
I think my design has been infringed – what should I do?
If your design is registered, consider contacting a knowledgeable lawyer. Whether you do or not, it is important that you make the alleged offender aware of their infringement. You can do this by writing a carefully worded letter to inform them that you intend to take action if they don’t cease. If nothing changes, then you can sue for damages.
If your design is not registered, the same course of action applies initially – a carefully worded letter to inform the person that you are aware. This can lead to a quick resolution, as the alleged offender may be unaware that they were infringing your design right in the first place.
However, if a letter has no effect, you can still take court action – even if your design has not been registered. In order to succeed, you will need to prove that you do hold the design right, and that there has definitely been an infringement due to someone else copying your design.
Such cases can be complex and potentially expensive, but our team of design law experts can talk you through the process before you get started.
I am being sued for design infringement – what should I do?
There are a number of defences available. If you can prove you reasonably believed you were not infringing any design rights, then the court may view your case favourably.
However, that doesn’t mean you can plead ignorance; the court will expect you to show that you have taken steps to ensure your product did not infringe anyone else’s design when you created it. Another defence available to you is that you believed the registered design was invalid.
Get help from First4lawyers
There are many alternatives to legal action in cases involving the infringement of design rights, and First4lawyers can help you to establish the route to a successful resolution, and won’t move ahead with any work that could cost you without checking it’s OK to do so.Contact us today to discuss your options.