After nearly four years of lobbying the IPO, Government and policy makers on the importance of EU unregistered rights protection for UK designers, post Brexit, Anti Copying in Design (ACID) is pleased to announce that the text from the UK on design rights includes the recognition that designs shown in the UK would receive protection across the EU.

ACID has consistently gathered evidence supporting the potentially calamitous consequences of losing unregistered rights’ protection in EU27 for UK designers, the majority of whom rely on unregistered rights. here  here  here

The draft text (page 216 for Designs’ reference) was shared by the UK negotiating team with the Task Force for Relations with the United Kingdom as a draft negotiating document, that is, to be shared among negotiating teams only, in line with the provisions of the Terms Reference.   However, the text has now been made public.

Dids Macdonald, OBE., ACID’s CEO said, “The fact that there is a provision in the text that designs shown in the UK would receive protection across the EU as we leave the EU is hugely significant but, of course, this is only the UK’s text and no guarantee there will be a deal or the EU will agree, but it’s a really positive step in the right direction. I would like to thank all those that gave evidence and the organisations that have supported us thus far, The Alliance for Intellectual Property, The Design Council, The British Furniture Confederation, Design Business Association, Lighting Association, The British Institute of Interior Design, The Design Trust, Crafts Council, Furniture Makers’ Company to name a few.”

ACID Chief Counsel Nick Kounoupias, Kounoupias IP commented “This certainly is good news for UK designers who will need protection within the EU post 31 December 2020. However it has still to be agreed by the EU. We can see no reason in principle why this should prove to be a controversial issue for the EU and we look forward to hearing that it has been agreed in the future.”

Hopes are that talks with the EU will be productive, following tensions in resumed talks this week after the UK escalated tensions by accusing Brussels of only offering a “low-quality” trade deal. Downing Street’s chief negotiator, David Frost, said the agreement on offer amounts to “unprecedented oversight” of laws and institutions from 1 January 2021.

Some relevant excerpts from the document are shown below.

ARTICLE 24.28

Unregistered design of products

1. The Parties recognise that the appearance of products may be protected through industrial designs, copyright or unfair competition prevention legislation.
2. Each Party shall provide legal means to prevent the use of the unregistered appearance of a product, if such use results from copying the unregistered appearance of the product to the extent provided by its laws and regulations. Such use shall at least cover offering for sale, putting on the market, importing or exporting the product.²⁹
3. The Parties shall provide that disclosure for the purposes of creating an unregistered design³⁰ will be satisfied by performing any of the following acts anywhere in the geographical area comprising the Union and the United Kingdom:

(a) publishing;

(b) exhibiting;

(c) using for trade;

(d) otherwise disclosing the design in such a way that, in the normal course of business, these events could have become known in the circles specialised in the sector concerned, operating within the Union or the United Kingdom; except where the disclosure falls within exclusions provided by relevant laws of the Parties.

²⁹ For the purpose of this Article, “copying”, “appearances”, “offering”, and “putting on the market” may be deemed by a Party to be synonymous with “imitating”, “configuration”, “displaying” and “selling”, respectively. ³⁰ In the Union, an “unregistered Community design”; in the United Kingdom, a “supplementary unregistered design right”.

4. Each Party shall ensure that the total term of protection available for an unregistered design is no less than 3 years.

The full document can be accessed here