Where copyright subsists in a work which consists of or includes a design in which design right subsists, it is not an infringement of design right in the design to do anything which is an infringement of the copyright in that work.
Definitions used in section 236 1
- 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
Cases considering section 236 3
Lambretta Clothing Company Ltd v Teddy Smith (UK) Ltd & Anor
Mance LJ, dissenting on section 51, regarded the provision as consistent with a dovetailing of copyright and design-right protection. The majority did not adopt that analysis. (see para. [83]) Cited only.
Total Electrical Solutions UK Limited & Anor v Nortek Electrical Circuits Limited
The court notes that commission was defined as a commission for money or money’s worth under the former design-right ownership regime. (see para [28])
Red Spider Technology v Omega Completions Technology
The judgment refers to section 236(2) and (3) when describing the requirement of copying a design to produce articles exactly or substantially to that design. Applying that stated statutory test, the design-right claim failed (see paras [118]-[121]). The judgment refers to section 236(2) and (3) when describing the requirement of copying a design to produce articles exactly or substantially to that design. Applying that stated statutory test, the design-right claim failed (see paras [118]-[121]).
What each judgment says about section 236 is in the case-law panel in the full Act.