Copyright, Designs and Patents Act 1988, section 213

Design right

Part III Design Right

(1)Design right is a property right which subsists in accordance with this Part in an original design.

(2) F681 In this Part “design” means the design of ... the shape or configuration (whether internal or external) of the whole or part of an article.

(3)Design right does not subsist in—

(a)a method or principle of construction,

(b)features of shape or configuration of an article which—

(i)enable the article to be connected to, or placed in, around or against, another article so that either article may perform its function, or

(ii)are dependent upon the appearance of another article of which the article is intended by the designer to form an integral part, or

(c)surface decoration.

(4) A design is not “original” for the purposes of this Part if it is commonplace [F682 in a qualifying country F682] in the design field in question at the time of its creation [F683 ; and “qualifying country” has the meaning given in section 217(3) F683] .

(5)Design right subsists in a design only if the design qualifies for design right protection by reference to—

(a)the designer or the person by whom [F684the designer was employedF684] (see sections 218 and 219), or

(b)the person by whom and country in which articles made to the design were first marketed (see section 220),

or in accordance with any Order under section 221 (power to make further provision with respect to qualification).

F685 ( 5A ) Design right does not subsist in a design which consists of or contains a controlled representation within the meaning of the Olympic Symbol etc. (Protection) Act 1995.

(6)Design right does not subsist unless and until the design has been recorded in a design document or an article has been made to the design.

(7)Design right does not subsist in a design which was so recorded, or to which an article was made, before the commencement of this Part.

Definitions used in section 213 6

design

1 (1) In this Act “design” means features of shape, configuration, pattern or ornament applied to an article by any industrial process, being features which in the finished article appeal to and are judged by the eye, but does not include—

(a)a method or principle of construction, or

(b)features of shape or configuration of an article which—

(i)are dictated solely by the function which the article has to perform, or

(ii)are dependent upon the appearance of another article of which the article is intended by the author of the design to form an integral part.

Defined in Sch.4 para.38 · see it in the full Act

“design” has the meaning assigned to it by section 1(1) of this Act ;

Defined in Sch.4 para.38 · see it in the full Act
article

“article” means any article of manufacture and includes any part of an article if that part is made and sold separately;

Defined in Sch.4 para.38 · see it in the full Act
designer

(1) In this Part the “designer”, in relation to a design, means the person who creates it.

Defined in s.214(1) · see it in the full Act
qualifying country

(za) make provision for the application of this Part to a country by virtue of paragraph (a) or (ba) of the definition of “qualifying country” in subsection (1) to be subject to specified restrictions, but those restrictions may only relate to rights which would otherwise apply as a result of—

(i)a performance being a qualifying performance because it meets Condition C or Condition D in section 181, and

(ii)that condition being met by way of a connection to such a country;

(a) make provision for the application of this Part to a country by virtue of paragraph (bb) or (c) of the definition of “qualifying country” in subsection (1) to be subject to specified restrictions;

(b) amend the definition of “qualifying country” in subsection (1) so as to add a country which is not a party to the Rome Convention;

(c)make provision for the application of this Part to a country added under paragraph (b) to be subject to specified restrictions.

Defined in s.206(4) · see it in the full Act

(a) make provision for the application of this Part to a country by virtue of paragraph (bb) or (c) of the definition of “qualifying country” in subsection (1) to be subject to specified restrictions;

Defined in s.206(4) · see it in the full Act
country

“country” includes any territory;

Defined in s.263(1) · see it in the full Act
design document

“design document” means any record of a design, whether in the form of a drawing, a written description, a photograph, data stored in a computer or otherwise;

Defined in s.263(1) · see it in the full Act

Cases considering section 213 39

Landor & Hawa International Ltd v Azure Designs Ltd

[2006] EWCA Civ 1285 · 28 July 2006Interprets

The exclusion is confined to a method or principle of construction, not a design merely serving a functional purpose. A design is not excluded where alternative appearances can achieve the same function and the claim does not monopolise a general principle. (see paras [10]-[17]; [20]-[27])

Dyson Ltd v Qualtex (UK) Ltd

[2006] EWCA Civ 166 · 8 March 2006Interprets

The court treated section 213 as a compromise lacking a single clear policy direction. Its language must be read as a reasonable reader would understand it against the legislative background (see paras [9]-[14]). The subsection was cited as establishing that design right is a property right subsisting in an original design (see para [13]). An aspect of shape or configuration must be discernible or recognisable. Protection may attach to detailed aspects of part of an article, without a further requirement of visual importance relative to the whole (see paras [22]-[26]; [48]-[49]). The exclusion for a method or principle of construction demonstrated that a statutory exclusion may extend beyond matter otherwise falling within the definition of design (see para [74]). The provision excludes specified connecting and appearance-dependent features. Its actual language governs rather than the informal labels “must fit” and “must match” (see paras [27]; [57]). A feature is excluded where it enables the relevant connection, placement or function. Merely avoiding obstruction is insufficient, although functional clearances and features maintaining effective operation may qualify (see paras [27]-[52]). Dependency must be assessed practically. The exclusion requires a real design need to copy the feature because of the appearance of the whole article; consumer preference for an exact copy is insufficient (see paras [53]-[72]). Surface decoration may be three-dimensional and need not be added after formation of the surface. The feature must fairly be perceived as decorating a surface, and significant function takes it outside the exclusion (see paras [73]-[84]). The court applied the exclusion for commonplace designs by examining the particular original aspect against designs current in the relevant field when it was created (see paras [98]-[110]).

Ultraframe (UK) Ltd. v Eurocell Building Plastics Ltd.& Anor

[2005] EWCA Civ 761 · 24 June 2005Limits

The definition of design permitted protection of the shape or configuration of the whole assembly, independently of whether its individual components were commonplace (see paras [63]-[67]). The must-fit exclusion did not determine protection of an assembly whose overall design subsisted independently of the design of its interconnections. The conflicting authorities were left unresolved (see paras [68]-[69]). The design field is not confined to products a particular designer could be expected to design. It encompasses designs familiar to the notional designer of the article. Public availability alone does not establish that a design was commonplace (see paras [51]-[60]).

19 more judgments, and what each says about section 213, are in the case-law panel in the full Act.

Amendments and notes

5 notes from legislation.gov.uk

Amendments

  1. F681Words in s. 213(2) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 1(1), 24(1); S.I. 2014/2330, art. 3, Sch.
  2. F682Words in s. 213(4) inserted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 1(3)(a), 24(1) (with s. 1(4)); S.I. 2014/2330, art. 3, Sch.
  3. F683Words in s. 213(4) inserted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 1(3)(b), 24(1) (with s. 1(4)); S.I. 2014/2330, art. 3, Sch.
  4. F684Words in s. 213(5)(a) substituted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 2(2)(a), 24(1) (with s. 2(3)); S.I. 2014/2330, art. 3, Sch.
  5. F685S. 213(5A) inserted (20.9.1995 with effect as mentioned in s. 14(2)(3) of the amending Act) by 1995 c. 32, s. 14(1); S.I. 1995/2472, art. 2