Patents, trademarks and increasingly domain names are typically seen as the most high-profile intellectual property (IP) assets, but the shape and form of products can also be protected through both registered designs and the automatic coverage provided by copyright laws. In this way, designs of logos and other articles – from the shape of an aeroplane to a mobile phone, or even a biscuit – can be protected for their appearances, while patents take care of their technical features.
Examples are many and various, but two are particularly worth mentioning: while the Burberry handbag didn’t significantly advance the way in which personal belongings were carried, its design bore a distinctive, chequered stamp. And James Dyson’s cyclonic vacuum cleaner managed to succeed through achievements on both the technical and aesthetic sides.
British designers have three routes available for registering their works: the UK Intellectual Property Office for domestic protection; the Registered Community Design (RCD) for the whole European Union; and the World Intellectual Property Organisation (WIPO) for coverage across 59 member states that have signed up to the Hague System for the International Registration of Industrial Designs (a PDF showing the most up-to-date list of those territories can be downloaded from here). In the UK, design registration provides exclusive rights for 25 years.
In a diverse range of industries such as fashion, automotive and engineering, the UK boasts some of the world’s most renowned designers. According to the UK-IPO, design and architectural services contributed around £33 billion to the UK economy in 2008. But despite the economic importance of this industry, there are concerns that it is often poorly served by the UK’s IP system.
A neglected role
The government is starting to cotton on to this and has spent 2011 conducting extensive research on the field, much of which recently culminated in an industry-wide symposium – plus, a major consultation led by the Department of Business Innovation and Skills (BIS), of which the UK-IPO is a division.
That thorough investigation of the UK design industry was triggered by comments in the Hargreaves Review, published in May this year. In his assessment of the UK’s IP landscape, Professor Ian Hargreaves recommended that the UK should have a ‘digital copyright exchange’ – a kind of virtual marketplace where licences in copyrighted content, including designs, could be readily bought and sold through online transactions. He also said that the UK-IPO should assess the relationship between design rights and innovation, adding that the role of IP in the design industry had been ‘neglected’. Highlighting the benefits of making up for that neglect, he stressed that design-friendly changes to the IP system could boost the UK economy by around £8bn.
Those comments effectively set the tone for the BIS investigation, and on 21 September, an event hosted by the Design Council, Understanding the Use and Impact of Design Rights on the Design Sector, unveiled findings from the first phase of research. According to BIS and the UK-IPO, UK companies have a ‘very low awareness’ of design rights compared to those in other European countries. It was also revealed that an imbalance exists in the practical usage of the IP system in relation to designs, with furniture and clothing companies shown to be most likely to register their creations. This indicates that, as a result of the low awareness, other industries are missing out on opportunities to realise the full value of their design assets.
At the event, which heard opinions from a range of leading thinkers in the UK design world, the BIS launched a call for evidence to gather wider industry views on how the IP system could best support design. The consultation closed in mid-November. A BIS spokesman told NewLegal Review that results and recommendations are likely to be published in January, but declined to comment on any potential changes to the system.
At the September event, Design Council CEO David Kester said: ‘We’ve probably got the biggest design sector in Europe, with a quarter of a million designers. But there is no doubt that we are under-using design rights. On the other hand, all businesses have a battle: where do they place their emphasis and their limited resources? Is the answer to constantly innovate and stay ahead of the competition, or to spend money protecting IP?’ But registering a design in the UK is not expensive. It only costs £60 directly through the UK-IPO, or between £200 and £400 through a law firm. And decisions on approving registrations can be made within a couple of months.
So why are UK companies seemingly less interested in protecting their designs than their European counterparts? One problem, according to Simon Taor, a partner at specialist IP law firm Marks & Clerk, is that it often makes more sense for UK businesses to protect their designs across the EU, rather than just the UK. ‘You have to be a pretty myopic designer to think your design will only be useful in the UK,’ he said.
Protecting a design via the RCD typically costs two to three times more than the UK-IPO, Taor added – but the payment will usually be tiny compared to the overall manufacturing costs of, say, a new style of sofa. One problem he cites is that creative people are often ‘very dubious’ about engaging with the IP system.
In the light of the BIS research, is it time for them to lose their inhibitions?
To hear audio clips from the BIS and Design Council’s September event, click here