designs:unregistered

 

Under US law, the owner of the design is eligible for unregistered design protection under copyright.

 

Under UK law, section 213(2) of the Copyright, designs and Patents Act 1988 ("the Act") gives protection to any aspect of the shape or configuration whether internal or external of the whole or part of an article.

 

Requirement of originality

 

Section 213(1) of the Act requires that a design right must be original. The Act does not define originality but it has been decided that an article is original if it is not "commonplace" in the design field at issue assessed at the time the article was created.

 

The court in A Fulton Company Ltd v Grant Barnett & Company Ltd has provided guidance on the issue of originality as summarised as follows:

 

Originality should be assessed by a comparison of the design of the article in the field including the alleged infringing article at the time of creation. The court will look and see whether the article in question is simply copied from the design of another article.

 

If the court is satisfied that there is no copying from an earlier article then the court will look at the degree of similarity to the design of similar designs in the same design field.

 

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