Following lengthy negotiations between the EU and the UK, the EU has now confirmed that when the transition period ends, designs first disclosed in the UK will no longer be eligible for protection as EU unregistered designs.
This development is a serious blow to UK designers and businesses, who are important both to our economy and culturally. It means design owners who wish to rely on unregistered design rights will need to think carefully about where they first disclose, or make public, their designs. First disclosure in the EU will continue to provide EU-wide unregistered design protection but that won't include the UK. In contrast, first disclosure of a design in the UK will only provide unregistered design protection in the UK. A new 'supplementary unregistered design' regime providing similar protection to the EU unregistered design right will be introduced in the UK in January 2021.
This change is likely to create considerable challenges for UK designers, particularly in the fashion industry and other fast-moving sectors that rely on the instant protection afforded by unregistered designs (available without incurring any fees or taking any other administrative steps). Designers will need to weigh up which is more important: UK or EU unregistered protection? Or they will need to come up with innovative ways to try to achieve simultaneous UK and EU disclosure, bearing in mind it will be up to the courts to decide what effect simultaneous disclosure could have under the new regime.
There are also other rights which can fill the gap, such as design registrations or copyright now that it has become more expansive following recent CJEU case law. So options are available to UK designers – they will need to use their creativity in considering how best to use those options to protect their valuable designs after Brexit.