This year, the Office for the Harmonisation of the Internal Market (OHIM) celebrated 10 years of the Community Design. The event celebrated a relatively new development in IP - the community design right. While rather new at the European level, design rights have a long history. This history is well documented in the IPO commissioned report, 'The Development of Design Law: Past and Future' by Alexander Carter-Silk and Michelle Lewiston.
Perhaps readers should be wary of economists writing about history written by lawyers, but the evolution of design rights is worth a look. Designs were originally protected under copyright which changed with the advent of the Industrial Revolution in the 19th and 20th centuries. With industrialisation, designs moved into an era in which they were integrated into utilitarian designs rather than being applied to them. It is a bit like the difference between moving from the attractive print on a computer bag to the sleek functionality of a tablet computer. In one case, the print design is decorative, in the other, the sleek design also serves a utilitarian purpose.
As the authors of the report note:
The protection of design has presented the legislature and judiciary with challenges for over 400 years. During this time, the duration, exclusions, scope and definition and the minimum requirements for protection of design have oscillated between extremes, responding to changes in industry and economic pressures.
For example, in 1787, parliament sought to provide protection to domestic calico producers by protecting designs. The result was The Calico Printers’ Act which granted two months of protection to;
Every person who shall invent, design and print or cause to be invented, designed and printed and become the proprietors of any new and original pattern or patterns for printing linens, cottons, calicos or muslins…
Currently, the evolution of design rights in the UK means that designs are covered by five individual rights: EU registered design rights, EU unregistered design rights, UK registered design rights, UK unregistered design rights and artistic copyright. As earlier studies point out these alternatives can cater for a range of economic and business needs. But some suggest this makes life too complicated even for the lawyers.
This is a question IPO has been tackling, and design rights continue to evolve with further changes being considered now.
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