The British Unregistered Design Right: Will it Survive its New Community Counterpart and Influence Future European Case Law?
Posted: 7 Apr 2008
Design law has gained increased topicality since the implementation of the Directive on the legal protection of designs (the "Directive") in the law of the Member States, and the enactment of the Regulation on Community designs (the "Regulation"). The Regulation introduced, in addition to the Community registered design right ("CRDR"), a Community unregistered design right ("CUDR") which is very similar to the CRDR. The CUDR came into force on 6 March 2002. It is in part based on the British invention of the unregistered design right or design right ("UDR"). Before the introduction of the CUDR, this type of right did not exist anywhere else in Europe. While the registered design right ("RDR") existed in Great Britain since the 18th century, the British legislature only introduced UDR in 1988 while reforming the Copyright, Designs and Patents Act ("CDPA"); the UDR entered into force on 1 August 1989. Thus, it is a relatively new right compared to traditional intellectual property rights. Is the British UDR remote from the new CUDR as introduced by the Community lawmaker?
The object of this article is to compare the main features of the UDR and the CUDR, in particular focusing on the requirements for protection and infringement, in order to evaluate whether or not the UDR will survive the CUDR, or whether the new CUDR will erase the UDR from the legal landscape, and whether UDR case law will influence future Community design courts case law. Comparisons with copyright will also be made where relevant. Finally, the article raises a further question: how to accommodate the relationships between all coexistent intellectual property rights, national and Community rights on the one hand, and traditional and new rights on the other.
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