Nic Ferrar, Patent Attorney at Adamson Jones, comments on the growing importance of design protection and why UK businesses should take note.
There is a longstanding notion that the UK has more than its fair share of creative minds. There is also much current focus on how innovation will be vital for business growth over the coming years. One only has to look at the tax incentives being offered by way of R&D Tax Credits and The Patent Box to understand the government’s backing for this point of view. However, there is relatively little discussion of how the UK actually ranks in the innovation stakes against other countries in Europe.
When assessing levels of innovation, patent statistics are often a focus. The European Patent Office was quick to point out earlier this year that the number of European patent applications being filed has grown year on year since a dip in 2009 to new record levels. It would seem widely acknowledged that patents are valuable and that the size of a patent portfolio is a good indicator of a company that strives to innovate.
However, there is another form of intellectual property protection for product innovations, which is often considered the poorer relation to a patent: the Registered Design. Whilst patents protect inventive functionality, a design can be registered for the appearance of a product, provided it is new and creates a different overall impression from existing designs.
The legal definition of a ‘design' is extremely broad and can cover anything from the appearance of a software user interface to the pattern on a T-shirt or the shape of the hull of a ship. Therefore, in the real world, designs are far more prolific than inventions since every new product must have resulted from a design process, regardless of whether or not it could be patented.
Despite this, the uptake of Registered Designs as a form of intellectual property protection has historically been relatively low, much lower than for patents, even though the registration process in the UK and Europe is quick and cost-effective when compared with patents, with a design often being registered in a matter of days or weeks after filing an application.
It is important to note that designs, as a form of IP protection in the UK and Europe, exist in both registered and unregistered forms. This means that a qualifying design attracts a basic level of automatic protection as soon as it has been created and the owner then has a choice as to whether or not to improve the strength/duration of the protection by registering the design. This differs from patent protection, which does not exist unless and until it has been registered. Hence, for UK/European residents, there is less pressure to register designs defensively and this may explain to some extent the lack of attention paid to Registered Designs as a form of protection.
However, designs span a far wider spectrum of creativity than patents, including artistic/aesthetic considerations as well as the more practical considerations of product shape. As such, Registered Designs have their own story to tell about the value that is placed upon the visual appeal of products. For a great majority of products, which aim to differentiate from their competitors based on look-and-feel rather than technical functionality, design protection should be a standard consideration.
The Registered Community Design (RCD) is a relative newcomer on the international intellectual property (IP) landscape but has rapidly become an important way of obtaining design protection in Europe.
So why should UK businesses show an interest particularly in designs at this point in time?
• The Hargreaves Review of intellectual property and growth for the UK in 2011 highlighted the important, but neglected, contribution that design makes to the UK economy;
• There is a growing body of case law in Europe, including some high-profile decisions relating to RCD's in the last couple of years, which have brought a better understanding of designs into the mainstream media and demonstrated that Registered Designs can be a valuable tool in the fight against alleged infringers;
• Focus on growing 3D printing technologies has recently highlighted the importance of designs in controlling the ability of individuals to print objects according to someone else's design.
However, the most recent figures show that the UK currently ranks 5th in a list of nationalities of owners of RCDs obtained between January and September 2013, behind Germany, Italy, France and the USA. Perhaps more surprising is that the UK registered less than one-third of the number of RCDs that were obtained by German owners in the same period and that, prior to 2010, the UK was registering less than half of the number of RCDs obtained by Italian owners.
These relevant data is made available by The Office for Harmonisation in the Internal Market (OHIM) – the authority for registering European Registered Community Designs.
It would seem that the UK has some way to go before it shows the same appreciation of design protection as a number of other countries. The trends over the last 4 years show that the UK’s 5th place ranking has been steadily held, being relatively clear of Spain (6th) and Japan (7th) but with some way to go to catch up with France.
The figures for 2013 are, so far, encouraging and show a modest increase in the UK’s share of RCD ownership from 6.22% in 2012 to 7.09%. Optimists may like to see this increase as the start of a trend initiated by the focus on the value of UK-originating intellectual property by the government. Even if this is the case, there is growing interest in IP protection in Europe from the Far East and it would seem that the UK will have to work hard in order to maintain the notion that the UK is a hub for creativity, particularly if it is to be concluded that UK creativity results in viable product designs that are worthy of protection.
Of course, the mere numbers of RCDs are no guarantee of design quality; rather they just indicate that the perceived value of a design to the owner is sufficient to warrant protection. However, these numbers are readily available, whereas a meaningful comparison of design quality is not, and the current focus on the importance of design protection suggests that these numbers may become of increasing relevance over the coming years.
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