An EU decision, following joint negotiations between the UK Government and EU Commission, confirms that there will be no reciprocity between EU27 and UK designers on unregistered Community design protection, reports IP rights champion Anti Copying in Design (ACID), which campaigned for four years to ensure that reciprocity on design law was included in a trade deal with the EU, and says that there are several potential ramifications for designers – particularly those in the UK who also trade in other territories.

According to ACID, this decision would appear to be diametrically opposed to the joint and agreed ambition that there would be a level playing field for agreement on the Intellectual Property Chapter, and leaves UK designers vulnerable to copying from EU27. 

Dids Macdonald OBE, ACID chief executive and vice chair of the Alliance for IP, says: “This is a significant setback post-Brexit for UK designers. Since 2016, we have submitted compelling evidence supporting the potentially calamitous affect this would have on UK designers if they were to lose this protection, and the Intellectual Property Office (IPO) listened and acted. The IPO had a tough challenge to persuade Whitehall, but they too listened, and appropriate text was included in the UK negotiating terms of reference, for which we are grateful. The EU’s rejection not only undermines the principle of a level playing field and reciprocity for the IP Chapter, it is also a smack in the face for EU27 designers who will be unable to have automatic protection in the UK.”

Currently, unregistered designs first shown in the EU, receive protection for three years. Until 31st December 2020, UK designers can rely on an unregistered Community design right, giving three years' protection against copying. The EU design right, which arises automatically, protects the individual character of a design with specific reference to colour, shape, ornamentation, lines, contours, texture and materials – in other words, it covers a product in its entirety. In the UK, unregistered design right protects the shape and configuration of products. 

In the future, UK unregistered designs first shown in UK will not receive automatic protection in EU27. The majority of UK designers rely on unregistered design rights which arise automatically, but from 1st January, they will no longer be able to rely on automatic protection in the 27 remaining EU countries. 

Evidence presented to Government by ACID representing many UK design companies said they could lose up to -25% of turnover and up to a -20% job loss because this would open the floodgates to design infringement by those intent on copying. 

The EU commission rejected 24.28 (4) – specifically, page 216 of the UK Negotiating Text and Terms of Reference: “Each Party shall ensure that the total term of protection available for an unregistered design to be no less than three years.” When ACID asked Government officials from the IPO why this was rejected by the EU, the reasons given were “that the issues were too complex and there was no time to work them out”. 

Nick Kounoupias, ACID’s chief counsel, says: “With Brexit out of the way, we urge Government and policymakers to use this clear opportunity and new freedom to support the UK’s fantastic designers by strengthening IP law. The current consultation on the new Enforcement Strategy is an ideal vehicle to include criminal provisions for unregistered registered design as a strong, much-needed deterrent against copying and even more so now.”