It’s easy to assume that owning the rights to a drawing or two dimensional image automatically provides intellectual property protection if that image is converted into a 3D object. It doesn’t.
For example, an organisation might have copyright or even trademark rights to a 2D cartoon character they have created for their marketing. To stop anybody creating or copying a 3D figure based on the design you need the specific protection offered by design rights.
Similarly, you might create an original design of teapot. Without the appropriate design rights somebody else could create a coffee pot based on the same design theme. They could even create a teapot that looks similar but using different colours. Without the appropriate design rights It would be very hard to stop them from selling it.
Having the wrong type of intellectual property protection is almost as risky as having no intellectual property protection. Owning the rights to the drawings of an object is not the same as owning the rights to the physical object.
What design rights cover
Design rights apply to 3D objects; specifically the shape, surface ornamentation, texture, colour, materials and contours.
If you create an original object you automatically have unregistered design rights for three years. However, the onus is on you to prove that the design was your original work. Could you prove that you came up with it before anyone else? This sometimes very difficult. Also, the protection with unregistered rights is only against direct copies of your object.
The safest option is to apply for registered design rights. This extends the IP rights for up to 25 years, renewable every five years. The protection applies to items that are similar to the original (for example a teapot or coffee pot with a similar unique design).
The process is straightforward and relatively inexpensive. Essentially you need to provide a series of representations from different angles showing how the object will appear. The rights allow revisions of the shape if these are needed to make it work as intended. Registered design rights have to be secured within 12 months of the object entering the public domain.
Is your object original?
You can only secure registered design rights if the object is new and original. The appearance and overall impression have to be unique. If there is something similar already in the public domain, unregistered rights are the best you can hope to achieve.
The final decision is whether you want to apply for UK or EU design rights, which will be all about your marketing objectives. The other complication is Brexit. What ‘flavour’ of Brexit will we get and how it will affect the relationship between UK and EU intellectual property rights is unclear.
For the moment, I’d advise filing in the United Kingdom and separately in the European Union to ensure your rights are protected whatever the outcome of the negotiations.
As always, the best approach is to get the right advice as early as possible and before there is a dispute.
If you’re unsure about whether you have the right protection, call us on + 44 (0)1278 453333