An Unregistered Community Design Right (UCDR) is a design right that arises automatically and protects the appearance of an object or product and is effective across the entire EU. It is particularly useful in areas such as the fashion industry. The appearance can incorporate the shape, colour, texture, material, surface decoration and ornamentation of an object, and can be either 2D or 3D object.
After the end of the Brexit transition period, on 1 January 2021, designs that are first launched in the EU will not be protected in the UK (by way of the UCDR). To deal with this situation, the UK government has created an equivalent right called a “supplementary design right” which will apply to designs first launched in the UK and protect that design in the UK only.
However, there is now a trap for the unwary in that a new design can receive protection through either a UCDR or a supplementary design right but not both. That said, designers may still also be able to benefit from the UK unregistered design right (UKUDR), which is a creature of a UK law dating back to 1988.
Design law was complex before Brexit. Now Brexit has added further complexity.
The changes in UCDR protection have also created a difficult situation for designers working in both the UK and the EU. Designers must now choose whether to launch their design in the UK (to get the supplementary design right) or launch in the EU (to get the UCDR), alongside the potential for obtaining the UKUDR, carefully considering in which territory it will be most beneficial to receive the most valuable unregistered protection.
Designers should also carefully consider registering for registered design rights. To receive protection in both the EU and the UK, designers will need either an unregistered design right in one territory, with a registered right in the other territory, or a registered design right in both territories.
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