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Changes to unregistered designs right after Brexit
Many designers rely on Unregistered Design Rights to protect their products in the UK and the EU. However, designers need to be aware of significant changes to Unregistered Design Rights following the end of the Brexit transition period on 31 December 2020.
Currently, Unregistered Community Design Right is available for new designs first disclosed in the EU and provides protection against copying of the design for three years in all EU member states. From 1 January 2021, this Unregistered Community Design Right will no longer cover the UK.
Any designs which are already protected by Unregistered Community Design Right will continue to be protected in the UK after 1 January 2020 for the remainder of that three year term. This will be known as a UK Continuing Unregistered Design (CUD). In addition, from 1 January 2021, the UK will create a Supplementary Unregistered Design (SUD), which will provide similar protection in the UK to that conferred by Unregistered Community Design Right.
However, it had been hoped that a reciprocal agreement would be reached with the EU to allow disclosure of a design in either the UK or the EU to create both Unregistered Community Design Right and UK SUD.
Unfortunately, it has now been confirmed that such an agreement has not been reached. Therefore, first disclosure of a design in the UK will only create SUD and will not create Unregistered Community Design Right too. Likewise, first disclosure of a design in the EU will create Unregistered Community Design Right but will not create SUD to provide protection in the UK as well.
It is possible that simultaneous disclosure of a new design in the UK and in the EU, perhaps through livestreaming of a product launch event or disclosure on website, would serve to establish both Unregistered Community Design Right and UK SUD. However, it is currently unknown whether such simultaneous disclosure would be accepted as creating both forms of protection.
Therefore, designers should think carefully about where to first disclose their designs to ensure the appropriate protection is achieved. It is strongly recommended that designers also consider obtaining a registered design to ensure they are protected as thoroughly as possible.