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New Intellectual Property proposals signal need for careful design agreements

Published: 23/12/13

You may have noticed recent commentary about 3D printing, particularly headline-grabbing stories about possibilities of creating a 3D printed gun, such as the Liberator plastic hand gun (something similar was recently featured in Sky Living’s Elementary) plus other objects including food and should you desire it – mini-me models of yourself and the family!

3D printers are already available on the UK high street and retailers are starting to offer in-store 3D printing and scanning services.

But as this story by Kim Walker, Partner at Thomas Eggar LLP and featured in Real Business highlights – it does raise legal implications for designers and owners around intellectual property that shouldn’t be ignored.

Kim Walker says – “designers, owners and those carrying out 3D printing should be aware of the way in which intellectual property rights are created, how these should be protected, when they might be infringed and what remedies are available.

“The law in relation to ownership of designs is to change under proposals in the Intellectual Property Bill announced in May 2013 pushing rights back to the designer. So it is critical that a company commissioning work from a designer uses a well-drafted agreement to identify rights, ownership and jurisdiction.

“The Bill, following the government’s response to the Hargreaves Review on intellectual property law, aims to simplify the law of design which will apply to both registered and unregistered. Key features include:

  • The redefinition of Unregistered Design Right (“UDR”) to prevent claims being based on very small parts of articles.
  • The clarification of the concept of a “commonplace” design. A UDR is currently not deemed original if it is “common place”. The proposal is to tighten the definition of commonplaceness to a specific geographical area.
  • The changing of the rule concerning first ownership so the designer, rather than commissioner, is the first owner of the UDR and registered design rights (“RDR”). This means that once the change comes into effect upon commissioning the production of any design, the commissioner should ensure the relevant contract commissioning the design includes appropriate UDR and RDR assignment clauses.
  • The simplification and expansion of qualification for UDR so those who are economically active in the EU may qualify.
  • The extension of the existing defence to an infringement of copyright in an artistic work to include permitted acts in relation to existing corresponding registered community designs. This again provides more certainty over whether certain use of designs will amount to an infringement.
  • The introduction of a limited defence to infringement of RDR where a third party acts in good faith in the use of a design that is subsequently registered by another. This will allow third parties to continue using the design according to any serious and effective preparations they have already made, without fear of someone being able to stop them at a later date and jeopardising their investment. These measures will harmonise the RDR regime in the UK with that for Community Registered Designs.

There will also be broader measures for enforcement of design rights:

  • Introducing a voluntary, non-binding opinions service for UK registered designs to give those involved in potential infringement actions an impartial view on the strength of their case before engaging in full legal proceedings.
  • Creating a new route of appeal to the Appointed Person against IPO decisions concerning UK registered designs, an alternative to the High Court.
  • Introducing criminal sanctions for deliberate copying of UK or Community Registered Designs and strengthening of design protection. Whilst it might be difficult to establish deliberate copying, this measure provides a stronger deterrent.

The Future?

“The Intellectual Property Bill is timely in clarifying some of the law around intellectual property protection of designs which are subjected to 3D printing. There may be further amendments needed, specifically in response to the issues which arise from the new framework.

“We will have a better idea of what direction this might take once the Bill becomes law and a claim for infringement of IP rights via 3D printing has been brought in the English Courts. This will surely only be a matter of time.”

Kim heads the commercial team at Thomas Eggar, and specialises in advising businesses on IP and technology law. See their site at: www.thomaseggar.com


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