Copyright, Designs and Patents Act 1988, section 229

Rights and remedies of design right owner

Part III Design Right

(1)An infringement of design right is actionable by the design right owner.

(2)In an action for infringement of design right all such relief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right.

(3)The court may in an action for infringement of design right, having regard to all the circumstances and in particular to—

(a)the flagrancy of the infringement, and

(b)any benefit accruing to the defendant by reason of the infringement,

award such additional damages as the justice of the case may require.

(4)This section has effect subject to section 233 (innocent infringement).

Definitions used in section 229 2

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

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

Defined in s.213(2) · 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
the court

27 (1) In this Act “the court” means—

(a)in England and Wales, the High Court or any patents county court having jurisdiction by virtue of an order under section 287 of the Copyright, Designs and Patents Act 1988,

(b)in Scotland, the Court of Session, and

(c)in Northern Ireland, the High Court.

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

“the court” shall be construed in accordance with section 27 of this Act ;

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

Cases considering section 229 6

A. Fulton Company Ltd v Grant Barnett & Company Ltd

[2000] EWCA Civ 513 · 5 October 2000

Confirms that infringement of design right is actionable by the design-right owner. Fulton could seek relief for the established infringements. (see remedies section) Confirms the availability of damages, injunctions, accounts and other relief, subject to the statutory restrictions. Further argument was required on the appropriate remedy. (see remedies section) Applies the additional-damages provision and refuses additional damages because the infringements were not flagrant. (see remedies section)

Farmer Build Ltd v Carier Bulk Materials Handling Ltd & Ors

[1998] EWCA Civ 1900 · 3 December 1998Defines

The court treated infringement of design right as a statutory tort actionable by the design right owner. That classification supported the conclusion that the statutory limitation period ordinarily governs the time for bringing proceedings. (see [Acquiescence and Remedies]; [Slade LJ’s observations]) The court noted that damages, injunctions, accounts and other relief available for infringement of property rights are available for design-right infringement. (see [Design Right - The Legislative Context])

Original Beauty Technology & Ors v G4K Fashion Ltd & Ors

[2021] EWHC 294 (Ch) · 24 February 2021

The court applied the additional-damages power by reference to flagrancy and benefit. Sending images of claimant garments to factories for reproduction was sufficiently flagrant to justify additional damages (see paras [504]-[510]).

1 more judgment, and what each says about section 229, are in the case-law panel in the full Act.