17 septembre 2025

Brands Update - September 2025 – 2 de 3 Publications

Big changes to design (and copyright?) law underway in the UK?

In-depth analysis

Proposals could impact those who rely on design right, copyright protection for works of applied art, design protection for computer-generated designs and other forms of design.

What has happened?

The government is consulting on possible amendments to the UK's registered and unregistered design laws, as well as to those aspects of copyright law that intersect with design law.

Among the proposals are simplifying the unregistered design system (including possibly abolishing unregistered design right protection entirely), abolishing design protection for wholly computer-generated designs, changing or clarifying copyright law on protection for works of applied art, and amending the disclosure requirements for supplementary unregistered designs to address post-Brexit complications.

The consultation also covers a variety of other proposals, including measures to try to stamp out anti-competitive design filings and to make it easier to protect digital and animated designs (GUIs) through updated file formats and legal definitions.

The proposals are significant and those who rely on designs and/or copyright (particularly design rights or copyright for works of applied art) will want to consider responding. The consultation closes at 23:59 on 27 November 2025.

Please get in touch if you would like assistance in deciding if/how to respond.

Want to know more?

Simplifying the unregistered design system

Designs potentially benefit from two forms of unregistered design protection in the UK: the supplementary unregistered design (SUD) (which stems from EU law) and design right (which is unique to the UK). These overlap in terms of what they protect but have different terms and qualification requirements.

The consultation seeks views on three options to simplify the law: doing nothing; retaining SUD protection and abolishing design right; or merging design right and SUD. As a minimum, the government says that it considers it desirable to harmonise the term of protection and qualification requirements for SUD and design right. Its preferred options are:

A term of five years for both forms of unregistered design (an increase on the current three-year term for SUD but a decrease on the current 10 or 15-year term for design right).

To adopt the SUD qualification requirements for both forms of unregistered design (separately being consulted on).

If the government goes further than this and abolishes/limits design right protection, then it could leave some designs (that currently benefit from design right but not SUD protection) without protection entirely. These include:

some product shapes

purely functional aspects of shape and configuration

some aspects of a complex product that are not visible in normal use

the internal configuration of a product

designs that are not new (so they would not benefit from SUD) but are not commonplace either (so they might currently be protected by design right).

In summary, these changes could impact those who rely on design right protection due to the fact that (a) design right covers aspects of designs not covered by SUD, (b) they meet the qualification requirements for design right but not SUD (c) their designs are not new but not commonplace either or (d) design right confers a longer term of protection.

Removing design protection for wholly computer-generated designs

Computer-generated designs without a human author can currently be protected as registered designs and under the law of design right. (SUD protection is not available as no provision is included on this in the parent EU legislation.)

The government's preferred option is to remove such protection, citing concerns about AI potentially flooding the system with designs that could harm human creativity. However, the government makes clear that it is open to receiving information on the extent to which businesses rely on such protection and to considering alternative options. This is a similar approach to that set out in last year's AI and copyright consultation. Those who use - or plan to use - AI to design will want to feed into this aspect of the consultation. Importantly, abolishing this protection for wholly computer-generated works would not impact protection for designs that are created with the aid of a computer (ie where there is a human element). However, if it is abolished, businesses will want to know where the line is drawn between works that do and do not benefit from design protection.

Intersection between copyright and designs

The intersection between copyright and design law – and its impact for works of applied art – has been the subject of debate for some time. Despite this, the government's preferred option is to do nothing at this point as it says that recent case law has clarified the position (ie made clear that works of applied art must also constitute works of "artistic craftsmanship" for copyright to subsist). However, it is also seeking views on alternative options, including

Amending copyright legislation. Options include: (a) removing works of artistic craftsmanship from copyright protection, (b) providing a definition of works of artistic craftsmanship and (c) providing a new definition of originality in relation to works of artistic craftsmanship. Options (b) and (c) would draw a clearer line between copyright and design protection. It would provide clarity but is unlikely to mean that a greater number of works of applied art would benefit from protection. Option (a) would mean only design protection would potentially be available for works of applied art (subject to whether such works continue to be protected under that system). The government says that option (a) could provide more certainty over what is covered by copyright (and designs). It could also provide support for replica businesses and product innovators and increase the incentive to create works inspired by classics.

Updating the copyright exceptions framework. This could include: (a) reintroducing an exception for industrially manufactured items, providing a shorter term of copyright protection for items where more than a certain number are made (eg reintroducing the old s.52), (b) introducing a spare parts exception to copyright law, equivalent to the existing designs exception for spare parts, (c) amending s.62 (the so-called panorama exception) which would allow works of artistic craftsmanship to be represented in new artistic works, such as photographs (to extend/clarify existing provisions).

Although the government says that its preferred option at present is to do nothing, it is clear (across the consultation) that a policy decision needs to be made on if/the extent to which IP protection should be available for functional designs. Those who rely on such protection should focus not only on the copyright aspects of the consultation but also on the extensive proposals around the future unregistered design system.

Separately, those who rely on copyright to protect spare parts should note its inclusion in the consultation.

Disclosure requirements for SUDs

At present, it is not clear whether a single design can benefit from both UK SUD and EU unregistered design protection, as each possibly requires first disclosure of the design to occur in the UK/EU (as appropriate).

The government wishes to address this uncertainty. It has discounted the option of seeking reciprocal recognition of disclosure with the EU (too complex), as well as allowing "any" disclosure abroad (irrespective of whether it comes to the attention of relevant trade circles in the UK) to give rise to SUD. It is looking at various options, including:

Making clear that SUD comes into existence when a design is first disclosed in the EU or (alternatively) anywhere in the world, provided it comes to the attention of relevant trade circles in the UK.

Unilaterally recognising simultaneous disclosure, in the UK and EU, provided it comes to the attention of relevant trade circles in the UK.

Introducing a grace period so that SUD still arises if a design is disclosed in the UK within a set period of time, even if it wasn't first disclosed in the UK.

The government does not have a preferred option. Most businesses will want to maximise the chances of benefiting from SUD but limit the opportunity for others elsewhere to benefit (especially as a design can be deemed to have come to the attention of relevant trade circles in the UK relatively easily, often just by publication on the internet). Getting this balance right will be key and what is right for one business won't be for another (depending on things like their geographical reaches).

Addressing anti-competitive design filings

The UKIPO is keen to stamp out the practice of the filing of designs which are clearly invalid (either intentionally or by accident), with reports of legitimate businesses having their products delisted from online platforms based on invalid registrations.

The consultation proposes several options – doing nothing has been discounted as has introducing full clearance searches (for novelty and individual character) at the application stage. The options include:

Limited examination powers for the IPO to investigate the novelty of 'suspicious' applications or applications that it knows have already been protected as designs.

A two-stage system where designs are partially registered without search, but full examination (for novelty and individual character) is required before enforcement (as in Australia).

New bad faith provisions (like those already in place under trade mark law) to allow the IPO to address dishonest applications.

Introducing opposition/observation periods to allow third parties to challenge new design applications.

Again, the government does not have a preferred option(s), but recognises that a balance needs to be struck between preserving the pros of the current system (which allows designs to be registered cheaply and quickly) and protecting legitimate businesses.

Express/improved protection for digital and animated designs

The government says that it wants to ensure that the design system reflects advances in digital technology and provide clarity for applicants filing GUIs (graphical user interfaces). Proposals include:

Allowing new file formats to be used when registering animated designs (described as a priority). This would allow animated designs to be better protected.

Possibly updating legal definitions to make it express that digital designs are registrable and extending the range of infringing activities to cover certain digital activities (like the EU has done).

Possibly publishing descriptions alongside visual representations of designs to make it easier for users to search for conflicting registered designs.

None of this is surprising and largely reflects changes we have seen at EU level.

Enforcement

The consultation includes a call for evidence on introducing criminal sanctions for unregistered design infringement (a big step and unlikely to result in much practical enforcement) and a proposal to make it possible to litigate registered designs in the IPEC small claims track (previously unregistered designs were considered too complex for this track).

Everything else

Other proposals (none of which seem particularly controversial) include:

introducing an express 12-, 18- or 30-month deferment period (18 months being the preferred period), as well as providing for publication of (at least, basic) information about deferred applications

possibly extending the prior use provisions so that they apply through any deferment period (such that an innocent infringer would not have to cease use of any infringing design it did not know about due to deferment)