Copyright, Designs and Patents Act 1988, section 217

Qualifying individuals and qualifying persons

Part III Design Right

(1)In this Part—

  • F689 ...

  • [F690 “qualifying person” means—

(a)an individual habitually resident in a qualifying country, or

(b)a body corporate or other body having legal personality which—

(i)is formed under the law of a part of the United Kingdom or another qualifying country, and

(ii)has in any qualifying country a place of business at which substantial business activity is carried on.F690]

(2)References in this Part to a qualifying person include the Crown and the government of any other qualifying country.

(3) In this section “qualifying country” means—

(a)the United Kingdom,

(b)a country to which this Part extends by virtue of an Order under section 255, [F691orF691]

F692(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)to the extent that an Order under section 256 so provides, a country designated under that section as enjoying reciprocal protection.

F693(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) In determining for the purpose of the definition of “qualifying person” whether substantial business activity is carried on at a place of business in any country, no account shall be taken of dealings in goods which are at all material times outside that country.

Definitions used in section 217 4

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

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

Defined in s.213(4) · see it in the full Act
business

“business” includes a trade or profession;

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

“the Crown” includes the Crown in right of Her Majesty’s Government in Northern Ireland and the Crown in right of the Scottish Administration and the Crown in right of the Welsh Assembly Government ;

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

“country” includes any territory;

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

Cases considering section 217 6

Tech 21 UK Ltd v Logitech Europe SA

[2015] EWHC 2614 (Ch) · 15 September 2015Defines

The court applied the definition of a qualifying person in assessing whether UK unregistered design right could subsist. (see para [107])

A Fulton Company Ltd. v Totes Isotoner (UK) Ltd.

[2003] EWCA Civ 1514 · 4 November 2003

The court rejected the argument that a separate creator had to be identified for a protected part. The designer of the whole necessarily designed its parts, so the qualification argument did not defeat subsistence. (see para [34])

I-Smart Developments Limited v Currentbody.com Limited

[2024] EWHC 2889 (IPEC) · 15 November 2024Defines

The provision was identified as part of the pleaded basis for arguing that Kaiyan, as the employer of the designer or designers, was not a qualifying person entitled to UK unregistered design rights. The court did not determine that issue on the applications. (see para [15])

What each judgment says about section 217 is in the case-law panel in the full Act.

Amendments and notes

5 notes from legislation.gov.uk

Amendments

  1. F689Words in s. 217(1) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 3(1)(a), 24(1) (with s. 3(6)); S.I. 2014/2330, art. 3, Sch.
  2. F690Words in s. 217(1) substituted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 3(1)(b), 24(1) (with s. 3(6)); S.I. 2014/2330, art. 3, Sch.
  3. F691Word in s. 217(3)(b) inserted (31.12.2020) by The Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/638), reg. 1, Sch. 8 para. 11(a)(i); 2020 c. 1, Sch. 5 para. 1(1)
  4. F692S. 217(3)(c) omitted (31.12.2020) by virtue of The Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/638), reg. 1, Sch. 8 para. 11(a)(ii); 2020 c. 1, Sch. 5 para. 1(1)
  5. F693S. 217(4) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 3(2), 24(1) (with s. 3(6)); S.I. 2014/2330, art. 3, Sch.