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22 October 2020CopyrightMuireann Bolger

EC denies UK designers UCD protections

In a setback for UK designers, the European Commission (EC) has rejected reciprocity on unregistered community design (UCD) protections following its negotiations with the UK government.

IP rights group Anti Copying in Design (ACID),  revealed  the decision yesterday, October 21, in a critical announcement. After campaigning for four years to have reciprocity on design law included in a trade deal with the EU, the group warned that the decision would lead to severe repercussions for designers, particularly for those with business operations in EU countries.

Until December 31 2020, UK designers can rely on an UCD right, providing them with three years protection against the copying of their works. The EU right protects the individual character of a design with regards to its colour, shape, ornamentation, lines, contours, texture and materials.

However, from January 21, UK unregistered designs first shown in the UK will not receive automatic protection throughout the remaining 27 EU countries.

The EC rejected 24.28 (4) – specifically, page 216 of the  UK Negotiating Text and Terms of Reference, which stated that: “each party shall ensure that the total term of protection available for an unregistered design to be no less than 3 years”.

According to ACID, this decision is “diametrically opposed to the joint and agreed ambition that there would be a level playing field for agreement on the Intellectual Property Chapter”.

Dids Macdonald, chief executive of ACID, said: “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.”

According to evidence presented to the UK government by ACID, UK design companies have said they could lose up to 25% of turnover and experience up to 20% job losses, because the decision would open the floodgates to design infringement.

Ewan Grist, partner in the IP team at Bird & Bird, told WIPR that the EC had dealt an unfortunate blow for designers in both the UK and the EU.

He said: “It causes designers, and particularly those who routinely rely on unregistered design rights such as fashion houses, an unpalatable choice: do they first disclose their new designs in the UK and therefore miss out on EU unregistered design protection, or do they first disclose in the EU and miss out on unregistered protection in the UK?”

He explained it also left designers in a quandary if they decide that, for commercial reasons, their first disclosure of a new design needs to be outside of both the EU and UK, eg, in a fashion show in New York.

He added that the decision created an additional burden for businesses. “It is not an ideal scenario and will make it all the more important for new designs to be protected by UK and/or EU registered designs, to avoid relying on unregistered rights.”

Nick Kounoupias, ACID’s chief counsel, said: “With Brexit out of the way, we urge the government and policy makers to use this clear opportunity and new freedom to support the UK’s fantastic designers by strengthening IP law.”

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