Journal

IPO survey on priorities to shape UK system for protecting designs

On 1 April 2025, Matthew Ridley, with support of the Designs & Copyright Committee, of which he is Chair, submitted CIPA’s response to the IPO’s ‘Survey on priorities to shape UK system for protecting designs’. The significant questions with CIPA’s comments (in blue) are published below.

Overview from the IPO

On 25 February 2025, the UK Intellectual Property Office (‘IPO’) published a survey aimed at designers, design businesses, legal professionals and anyone interested in design. The aim was to explore the principles which should shape the future of the UK designs system.

The designs sector is an economically important one and contributed £97.4 billion GVA to the UK economy in 2019, equivalent to 4.9% total GVA. In 2021 there were 80,665 design businesses in the UK of which 92% were microbusinesses (<9 employees).

The UK designs protection system should help people grow the economy through investment in innovation and creativity. The IPO is reviewing the UK designs framework to make sure it is fit for the future and supports designs businesses of all sizes. A call for views on designs and call for views on designs: Government response were published in 2022.

Ahead of a formal consultation later in the year, the IPO wants to understand more about users’ priorities for the system.

To ensure it has the basics right and are guided by the right priorities, the IPO has identified five principles which it thinks are important to users:

1. Cost – the system should offer value for money.
2. Validity – the system should provide appropriate level of validity and clarity about existence of IP rights of rights.
3. Speed – design protection should be quick to obtain and enforce.
4. Choice – the system should provide choice for designers.
5. Simplicity – the system should be as simple as possible.

The IPO wanted to know which of these principles are most important to users and why. And whether the definition of a design in intellectual property law meets the needs of designers and consumers in the digital age.

The IPO asked businesses and designers to share their views by taking part in a short survey. It  wanted to hear from businesses of all sizes, and from a wide range of sectors which use design protection – whether an individual entrepreneur, start-up, established firm or large corporate. As well as trade bodies and legal professionals.

The survey will help the IPO to better understand what is important to users of the designs system. The IPO will use responses to inform options for change to the framework, which we will consult on later in the year.

Q12: The interactions between the principles have been touched on above. The IPO would like to understand the importance stakeholders place on each principle in respect of the others. Please rank the principles in order of importance to you 1-5 (1= most important, 5= least important):

1. Validity
2. Choice
3. Cost
4. Simplicity
5. Speed

We highlight that the current system of applying for registered designs already substantially favours low costs, speed and simplicity. For example, it is possible to protect 50 designs for £150 via a simple online form that can be completed within an hour or two, with registration typically occurring within days, thereby giving the applicant a paper monopoly for all 50 designs for minimal application effort. However, only very limited checks to validity are performed, such that it is quite feasible to obtain a registered design for a product that clearly lacks novelty. As a result, the validity of registered designs is ranked very low in importance under the current system, and it is expected that there are many invalid registered designs. This causes higher enforcement and defence costs. We consider that validity should be given more importance in the registered designs system, and set out further details of how we think it could be given more importance in our answer to question 18.

In the current system there is a good amount of choice, given the variety of unregistered design rights, registered designs and other forms of IP protection. Unregistered designs have zero cost or speed aspect to obtaining them; however, they are less simple to enforce.

Regarding speed, whilst the IPO should be applauded for achieving such fast grant of registered designs, we do not regularly see examples of where such fast registration is of significant benefit. There are some cases in which obtaining registered design protection quickly is very valuable. However, in many cases registered designs are filed well before product launches, so application speed is less important and the ability to choose when publication occurs, through the deferred publication route, becomes more important. However, one issue where speed would be beneficial is in the invalidation of registered designs. Whilst registered designs can be granted and enforced within a matter of weeks, it can take a year or more to invalidate a UK design registration. This puts the balance heavily in favour of rights owners, particularly if the relevant product is in a fast-moving sector, in which the invalidation decision can be issued well after a product has ceased being sold and any benefit of such invalidation can be enjoyed. This is discussed further in our response to question 18.

Q13: Are there any other principles which we have not included that are important to you? If so, what are they and why are they important?

Transparency – The ability for third parties and proprietors to see design registrations in existence is very important, or otherwise the system cannot function effectively. At present, we consider that there is insufficient transparency. For example, it is not possible to view Hague registrations on the UK Designs Register. It is also not possible to view prosecution documents for a design registration online, and applications for invalidation are not published online. Decisions on validity are published, but are not linked to the design registration on the online register. This makes it very hard for third parties to investigate design registrations, driving up legal research costs and hindering innovation. As discussed in other parts of our response, we consider that a number of elements of the current tools need improving. Essentially, we consider that the data on the registered designs register should at least be equivalent to that on the patents register.

Impact on the public – The principles identified are those relevant to the direct users of the designs system. However, in a similar manner to all intellectual property rights, when considering potential changes to the designs system, the impact of the system on the consumers of products incorporating protected designs must also be considered. On the one hand, protecting the work of designers by giving them monopolies over their designs will lead to further investment in such invention and creativity, thereby improving the products available to consumers and spurring economic growth. On the other hand, giving designers monopolies for insignificant contributions to products could reduce competition, thereby increasing prices for consumers and hindering innovation.

Q14: The following questions explore the principles and the way they work together in more detail. How do you protect your designs? (tick all that apply).

Registered; Unregistered; Copyright; Patent; Trade mark; Non-disclosure or confidentiality agreement; Trade secret; No protection; Other.

[All boxes were ticked, apart from ‘No protection’. CIPA expressed its concerns to the IPO so it is aware of the redundancies and lack of clarity in this question.] Many products for which our members obtain IP protection for will be protected by a variety, if not all, of these rights.

[Questions 15-17, there were fixed answers with the following options as responses: Very important; Important; Neutral; Unimportant; and Very unimportant.]

Q15: To what extent are the following important or unimportant to you?

The final two options were marked as ‘Very important’:

• Low enforcement costs
• Overall higher quality and validity regardless of costs.

The first two options were marked as ‘Important’:

• Low costs at the point of registration
• Low costs overall.

Q16: To what extent are the following important or unimportant to you?

The first four options were marked as ‘Very important’:

• Having a range of design protection options
• Having options to decide how to enforce my rights
• Having options to decide how to license my rights
• Having options to decide how to protect my designs in other ways (e.g. with copyright or patents)

The final two as ‘Important’, on the basis of choice being more important than speed:

• Being able to obtain quicker protection (accelerate processing of my application)
• Being able to delay obtaining protection (defer processing of my application)

Q17: To what extent are the following important or unimportant to you?

The middle options was marked as ‘Very important’:

• Aligning with design protection systems internationally.

The other two options were marked as ‘Important’:

• The speed of registration for my designs
• A simple, easy to understand process for protecting my designs.

Q18: Is there anything else you think is important or very important relating to the design protection system? Please specify

[NB: also see CIPA’s response to question 24 that focuses on general updates needed to the designs system.]

The ‘thicket’ of invalid design registrations, due to the low application fees, creates significant costs for other UK businesses. For example, if such businesses want to launch a product, they have to sift through a large number of registered designs, knowing that many of them will be invalid. This significantly increases downstream costs for UK businesses. Indeed, since so many registered designs are invalid, and due to the difficulty of searching them, many UK businesses entirely ignore registered designs from a clearance perspective, making the registered design system somewhat redundant without a significant deterrent element. In addition, we are aware of the use of invalid registered designs in takedown notices on online marketplaces by applicants who have, in many cases in bad faith, obtained registered designs that clearly lack novelty or individual character.

In other words, the costs of the design system downstream of filing during enforcement and clearance have been sacrificed for the sake of low application fees.

There are two main ways in which the thicket could be reduced. Firstly, application costs could be raised to reduce the number of filings for low-quality registrations. We think it highly unlikely that true designers of valuable products would not file a design registration for an official fee of twice that of the current level; if a designer is not willing to pay £100 rather than £50, then their design cannot be of sufficient quality or value to warrant protection. However, such a fee increase might prevent people from just ‘having a go’ with a registration that they know is likely invalid. We consider that substantial thought should go into increasing the fees beyond their current level, recognising that the low fees have brought problems to UK businesses, in the form of design registration thickets.

Secondly, more emphasis could be placed on the validity of design registrations. In an ideal system, there would be a high likelihood of all design registrations being valid. This could be achieved with a pre-grant examination process. However, with current technology it is not possible to implement examination in a way that is cost effective, quick and reliable. We particularly highlight reliability; unless there is a very high quality of examination (which we do not think is possible with existing design search tools, including AI tools), examination results would not be considered particularly relevant to users of the designs system, and thus will add no value to the system, just cost and slower registration speeds.

To maintain the benefits of the existing lower cost and fast registration system, we suggest that consideration be given to making it quicker, easier and cheaper for third parties to deal with invalid registered designs after grant. At present, it is possible to file an invalidation application at a relatively low cost. However, the system is opaque (given how none of the invalidation documentation is ever published online, unless a final decision is reached), can take a long time to conclude (decisions seem to often be issued a year or so after the invalidation application is made), and can be expensive or ineffective because the invalidity applicant must find prior art themselves. This means that design invalidation applications are not always effective responses for alleged infringers.

The current system could be overhauled to speed up invalidation applications, as well as to provide infringement opinions (perhaps even in conjunction with one another). We highlight that the IP Act 2014 introduced the option for having a designs opinion service, but that this has not been implemented, despite a consultation being run on its regulations in 2015.

However, we consider that post-grant search and examination of registered designs by the IPO should at least be made an option for third parties, provided that the IPO can implement such search and examination quickly (i.e. within a matter of weeks of filing a request). Simultaneously, a designs infringement opinion service, which can be linked to the search and examination results, could be of significant benefit to small designers. This could help them deal with infringement accusations, such as obtaining an opinion that whilst the registered design is valid, the opinion of the IPO is that there is no infringement.

Various aspects of a post-grant search and examination process would need detailed consideration. It would be useful if both proprietors and third parties can request it, and if third parties can supply some prior art as well. The IPO should be able to invalidate registrations after such a process, with the opportunity for appeal to a low-cost tribunal. An option to prevent spurious takedown notices based on invalid registrations would be to require a certificate of examination prior to enforcement; however, this might impact the ability for interim injunctions to be issued. An alternative may be to link unjustified threats with obtaining a certification of examination.

[Questions 19-20, there were fixed answers with the following options as responses: Very burdensome; Somewhat burdensome; Neutral; Not very burdensome; Minimally burdensome; and Not applicable to me.]

Q19: How burdensome do you find the following elements of the design protection system?

• Understanding the system – Neutral
• Registration fees – Minimally burdensome
• Renewal fees – Neutral
• Administration…. – Minimally burdensome
• Legal fees – not applicable
• Enforcement –Burdensome
• Licensing – Neutral

Q20: Are there any other aspects which you find burdensome/very burdensome? Please specify: Understanding the system; Registration fees; Renewal fees; Administration related to registration e.g. filling in official forms, responding to communications from IPO, renewal process etc; Legal fees; Enforcement; Licensing

We refer to the rest of our response regarding the difficulties with enforcement and our proposals to address this.

Q21: Does the burden of any of these elements limit your production or commercialisation of designs? (Tick all that apply: Understanding the system; Registrations fees; Renewal fees; Administration related to registration, e.g. filling in official forms, responding to communications from IPO, renewal process, etc; Legal fees; Enforcement; Licensing; None of the above; Other).

Selected ‘none of the above’ due to the lack of a not applicable option!]

Q22: Has the interaction between different forms of design protection been beneficial or harmful to you? How?

We consider the choice between unregistered and registered designs to provide significant benefit to UK businesses and users of the designs system. Many designers of innovative and creative products do not manage to register their designs, most likely due to a lack of familiarity with the system. They may only become aware of the option of applying for registered designs when they come across a copy of their own product. Yet furthermore, when filing a registered design, applicants will typically protect the product as a whole, whereas a copier may only copy a small part of the product. By virtue of the ability to enforce unregistered design rights (UDRs) in just parts of products, it is possible for designers to take action against copiers who almost entirely copy their products, but not quite to the extent that there is registered design infringement. As a result, it is essential that such designers can rely on UDRs as an alternative to registered designs.

The complexity of the differing UDRs could be seen as harmful, due to the complexities added. However, when it comes to enforcement, most parties are not concerned about complexity and are instead much more concerned with having a right, whether one of the unregistered rights or a registered design, to enforce. We therefore consider that the existing scope of protection of UDRs should be maintained, whilst making it as clear as possible.

Simplicity will be important for unrepresented applicants. However, achieving simplicity is likely the most difficult of all of the principles. Part of the reason for the complexity of the current designs system is that the designs industry is extremely diverse, and it is impossible to know what new products might be designed in future that require protection. Furthermore, different elements of the designs system provide different, well deserved, remedies for designers; for example, as per the above, UDRs will at least help designers without registered designs protect their products from blatant copying, so are essential for the system as a whole.

Q23: Has the interaction of designs protection with other IP rights been beneficial or harmful to you? How?

Please give us your views

We do not see any conflict with patents and trade marks and generally consider the ability to enforce them alongside registered or unregistered designs to be very beneficial.

However, the interaction between unregistered design rights and copyright for artistic works has caused problems for many years. It is unclear where the boundary lies, leading to numerous cases before the courts, at high cost to users. We consider that clarity needs to be provided on the extent of copyright as compared to design right, or otherwise these problems and litigation will just carry on for many years to come.

Q24: Is there anything else you think is important or very important relating to the design protection system? Please specify

Criminal sanctions for unregistered design rights

• There will be requests from some quarters to introduce criminal sanctions for unregistered design rights (UDR). CIPA remains strongly opposed to any possible extension of criminal sanctions to UDR infringements. That was our position during the Parliamentary debate of the UK IP Bill 2013-2014. There is no compelling evidence since that time to support a change from this position.
• One of the difficulties with such suggestions is that the complexity of the UDR regime in the UK is such that it is very difficult to establish the existence of these UDRs. This introduces challenges from a third party/due diligence perspective, since it can then be impossible for a third party to know whether UDRs exist in a product.
• For instance, in the context of SUDs, a third party may not know where in the world a design was first publicly disclosed (noting the existence of SUDs is predicated on where the design is first disclosed geographically). Also in the context of UKUDR, the existence of these rights is predicated on many varying qualification criteria as set out in s217-s221 CDPA 1988, whose complexity is such that establishing the existence of UKUDR in a given design can be an impossible task to third parties, who might not be in a position to know how a design was first disclosed, and by whom.
• This will have the result that UK-based designers will avoid taking actions to avoid any potential UDR infringement, when those actions are actually perfectly legitimate. This would then hinder design and innovation in the UK. Designers in other countries could, however, go ahead freely without any risk of criminal sanctions. 
• Disputes relating to UDR in particular should not be dealt with by criminal courts because, for example: (1) the law relating to UDR and its peculiar exclusions (‘must fit’, ‘must match’, ‘commonplace’) is complex and requires technical consideration as well as appreciation of the case law; (2) the threat of criminal proceedings could easily be used wrongly to put pressure on third parties, including on SMEs, when no UDR exists because it is extremely difficult for third parties to ascertain whether or not any right subsists and (3) The risk of wrongful conviction is real and unacceptable for UK businesses.

Registered designs:

• We recommend that the UK participates in the DAS system for designs as soon as possible. At present, if priority from a UK design application is claimed in a foreign application, we have to request a paper copy of that application from the IPO and then arrange for the copy to be submitted to the local patent office of the foreign application. Participation in DAS would enable us to simply provide a code instead of a copy and would save significant costs, particularly to UK businesses who usually file in the UK first. The inability to use DAS makes the UK less attractive when deciding where to file first: many applicants will choose the EU first so that they can use the DAS code in foreign filings, due to the cost savings available.
• It should be possible to file divisional applications based upon Hague applications designating GB – When the legislation was implemented to allow the UK to join the Hague system, the ability to file a divisional from a GB designation of a Hague application was disapplied. This significantly disadvantages applicants using the Hague system, since it limits the ability of applicants to deal with objections to their application by the IPO. We are concerned that this inability to file divisional applications is contrary to Article 12(3)(b) of the Geneva Act 1999, which states that ‘The holder shall enjoy the same remedies as if any industrial design that is the subject of the international registration had been the subject of an application for the grant of protection under the law applicable to the Office that communicated the refusal.’
• There should be an ability for the IPO to provide Certificate of Registrations (even if just on demand) for Hague(UK) design registrations that have been issued a Statement of Grant. Noting such a certificate is often needed in enforcement contexts, and on some online marketplaces, and also when it comes to possible extension of a UK design registration abroad to other territories (e.g. Jersey), where they want to see a Certificate, not just a Statement of Grant from WIPO, or the underlying Registration document from WIPO – which are documents not recognised or understood. An ability to provide this certificate would seemingly require an update to exclusions set out under Schedule 1 of The Designs (International Registration of Industrial Designs) Order 2018.
• There should be an ability for the IPO to provide copies (certified or uncertified copies) of a Hague(UK) design registrations as accepted by the IPO, for similar reasons to those noted above. An ability to provide these copies would again require an update to exclusions set out under Schedule 1 of The Designs (International Registration of Industrial Designs) Order 2018.
• We consider that, for the sake of transparency, a number of updates to online systems should be implemented. Hague(UK) design registrations should be added to the UK design register. An electronic, publicly accessible, file wrapper showing all the correspondence of a granted UK design registration should be available. There should be the ability for the images of a UK design registrations to be searched using an image upload service, and a related ability for DesignView’s image search engine to apply to UK design registrations (to which it does not currently, which many people assume it does). This leads to the dangerous position of entities using the DesignView’s image search engine thinking this will include UK design registrations as part of the search, when it does not in practice.
• We consider that it may be useful for the IPO to have powers to revoke design registrations of its own volition, akin to powers under s73 Patents Act 1977, though perhaps more broadly empowered to allow revocation upon the IPO being satisfied that there is clear evidence that a given UK design registration is invalid (i.e. not necessarily part of an opinion, or an invalidity action).
• We recommend the implementation of a (D) symbol (a ‘D’ in a circle, like © in the context of copyright) for showing the existence of a UK design registration, through salient revisions/additions to s24B and s35 from the RDA1949. This would be similar to the upcoming update to EU registered design law.
• We recommend a balancing of the fee structure for UK design registrations between those which are published immediately, and those which are subject to deferred publication. Pursuing 50 designs without deferred publication incurs official fees of £150, whereas pursuing the same designs with deferred publication incurs fees of £2,150. This does not seem proportionate.
• We believe that there is a need for urgent implementation of restoration provisions for missed deadlines (under the ‘unintentional’ test), including missed priority claims, per the requirements of the text of the DLT as adopted, on the assumption that the UK is to ratify this text at some stage.

• We consider that changes should be made to the ability to amend registered designs – It is possible to correct representations post-grant under s21 RDA, but this is not clear. We recommend that s21 be expanded to make it clear that representations can be corrected pre- and post-grant to remove inconsistencies between drawings, provided that the correction is clearly visible in the other representation(s). Thought should be given as to whether third party rights accrue – for example, if the correction is so significant as to change the scope of protection substantially, third parties who reached a clearance position prior to the correction ought to be protected in some way.

• We consider that the deferred publication period should be expanded to 30 months from the priority date. This would significantly help UK businesses who need to file for protection early, but do not wish for the product to be published within the existing 12-month deferred publication period. At present, such UK businesses need to file in the EU first (which has a 30-month deferment period), file in the UK at the end of the six-month priority period, and then request 12 months deferred publication. This ensures publication is deferred as much as possible – i.e. 18 months from the priority date. It would be much simpler if such UK businesses could file in the UK first, requesting 30 months deferred publication when doing so.

Unregistered design rights (UDRs)

• Recognising that the IPO might be considering a ‘simplification’ of the UDR system, under the broadly established consensus that the UKUDR system is complicated, great care will be required if this is going to happen, to ensure there are no unintended consequences of doing so, in terms of cutting protection in areas where this protection currently exists under the complicated framework. Though potential areas of focus might include, on the assumption the existing UKUDR and SUD right landscape is preserved in some form:
• A simplification of s216 CDPA 1988, with consideration being given to removing s216(1)(b) CDPA 1988, such to make the duration of UKUDR a fixed period based on one test (i.e. more similar to the duration of SUDs, which is based on one test – in the form of the first disclosure of the design). In that respect, the intention of s216(1)(b) CDPA 1988 to limit the term of protection of UKUDR based on whether (or not) articles made to the design are made available for sale or hire, is not fully understood. If such an approach was considered in terms of removing s216(1)(b) CDPA 1988, to provide greater certainty to third parties as to the duration of UKUDR, consideration might then be given to restricting the scope of retained s216(1)(a) CDPA 1988, such that the duration of protection is ‘X years from the end of the calendar year in which the design was first publicly disclosed’, which is a date much more comprehendible to third parties. Consideration could be given to whether X should be 15 years (to correspond with the current maximum period from fixing the design) or ten years (to correspond with first sales, which are more akin to first disclosure).
• The duration of SUD rights of around three years is a very short period of protection, which is at-odds with the duration of UKUDR of up to 15 years (with a monopoly right for at least five years), or artistic work copyright (if applicable) whose duration can exceed 70 years. Any proposal to extend the duration of SUD rights may be well received by some quarters. Appreciably, however, any change in the term of SUD rights in this way would create a divergence with the corresponding term of protection for unregistered design rights in the EU. It may therefore be helpful in the consultation, which is to follow, to explore whether users would be supportive (or not) of an increased term of protection for SUD rights.
• Clarification on the existence of supplementary unregistered design (SUD) rights with respect to the phrases ‘qualifying country or a qualifying territory’. In that respect, the current legislation(s10(b)(iii) from Schedule 1 of ‘The Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019’) preconditions the existence of SUD to disclosures ‘made available to the public within the United Kingdom, a qualifying country or a qualifying territory’. Related to this, the current legislation (s8 from Schedule 1 of ‘The Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019’) then notes that for the purposes of this Regulation, a ‘qualifying country’ or a ‘qualifying territory’ are those designated ‘in Regulations made by the Secretary of State’. Yet we are not aware of such ‘Regulations made by the Secretary of State’ in existence yet. As background, the terms ‘qualifying country’ or ‘qualifying territory’ are relatedly used in the context of UKUDR, per s217(3)(d) CDPA 1988, in combination with s256 CDPA 1988 and ‘The Design Right (Reciprocal Protection) (No. 2) Order 1989’, for the purposes of bringing in territories such as the Channel Islands and Gibraltar [amongst other places] into the scope of UKUDR. Our concern is therefore without secondary legislation along the lines of ‘The Design Right (Reciprocal Protection) (No. 2) Order 1989’; but in the context of SUD, rather than UKUDR; the existence of valuable SUD rights in places such as the Channel Islands and Gibraltar is effectively being ruled out, to mean that a first disclosure in any of these European territories will mean that neither SUD or UCD rights arise – which is a position we question whether the UK Government is intending, given our strong political and legislative connections with these territories, and the related position with respect to UKUDR where such territories are covered. We are also not immediately aware of any legislation that applies SUD rights to the Isle of Man, in contrast to the RDA 1949 and CDPA 1988, which we understand have each been extended to the Isle of Man via additional legislation.
• One observation with respect to SUD rights (which can cover things that might also be argued as being an artistic work of copyright, particularly designs relating to those typically classified under Locarno Classification 32.01 – such as artwork; surface decoration; and logos), is that the copyright for such designs is subject to a number of exemptions as set out under s28 – s76 CDPA 1988, which are exemptions not applicable to SUD rights. Related to this, s236 CDPA 1988 precludes enforcement of UKUDR rights in instances where copyright exists in the same work. However, no related provision exists for SUDs, which means that enforcement of a design that might also be deemed to have artistic work copyright (particularly designs relating to those typically classified under Locarno Classification 32.01 – such as artwork; surface decoration; and logos) could ostensibly be enforced under both copyright and SUD rights. It is unclear to us if these matters were the intention of the Government; if not, consideration should be given to the matters.

Definition of a design:

The term ‘design’ in everyday language is quite nebulous and can mean different things to different people. Dictionary definitions of design cover a broad range of meanings such as plans or schemes and the products or outcomes that result from them. The Design Council says that ‘design is what happens when people use creativity to solve problems’ and that ‘everything not made by nature has been designed’. These interpretations are broader than how design is currently defined in IP law. However, it might not be possible or desirable for IP to protect everything which falls within the broad term of ‘design’.

Designs may be protected by a range of intellectual property rights. In addition to design protection itself, copyright protects works of artistic craftsmanship, and functional aspects of a design may be protected by patents. Consideration of overlaps with other IP rights is out of scope of this survey but the IPO will consider some of these interactions in the consultation.

Currently, there are two definitions of design in IP law. They are:

The appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product or its ornamentation. This definition applies to UK registered designs and supplementary unregistered designs.

The design of the shape or configuration (whether internal or external) of the whole or part of an article. This definition applies to UK unregistered design right.

These definitions of what a design is limit the way IP can be used to protect designs to the appearance of a product, its shape, or the way the parts of an article are arranged.

It is generally accepted in the current UK IP protection system for designs that ‘design’ relates to the appearance of a product. However, products can have a wider sensory experience than visual aesthetics. The IPO wants to explore whether the term ‘design’ should extend to features perceived by other senses.

Developments in technology also bring new challenges as to what is considered a design. For example, digital designs can be animated, and physical products might have associated digital characteristics which can only be experienced in specific ways (such as through augmented reality). Some users see growing equivalence between digital and physical products. The IPO needs to consider the impact of these changes in technology on the designs system, and how to futureproof the definition of design. Issues relating to design protection in relation to future and emerging technology will be considered in more detail in the consultation.

The IPO wants to understand whether the definitions in IP law meet the needs of designers, consumers and broader society. If not, should the IPO consider broadening the scope of what can be protected as a design?

Q25 Do you think the definition of a design in UK IP law should be broadened?

Yes.

Q26: If yes, what else do you think should be protectable.

We consider that that the definition of a ‘design’ and ‘product’ should be updated to ensure that it is clear that registered designs can cover a wider range of digital designs, including animated graphical user interfaces, since this is an area of uncertainty under current legislation.

We highlight that the EU is making changes to registered design law to address this issue. Making the same changes to UK law as the recent changes to EU registered design law by Regulation 2024/2822 would therefore be the most practical and simplest way of implementing this.

In our experience British businesses, for the sake of practicality and convenience, want consistency between the UK and EU in terms of what is protectable from a design registration perspective. If there is inconsistency, it only adds to the costs of the legal advice they require when trying to protect their designs.

We also highlight that at present the IPO will object to a design application for an animated graphical user interface where there are no common features between views. For example, we understand that they would reject an application showing a series of different sports participants (e.g. showing, for example on a waiting screen for a ticket booking website, a sequence of a tennis player followed by a cricket player followed by a football player) because they do not have common features. The basis for the rejection is that multiple products are shown. In our view the product is the animated GUI as a whole, showing the different sports participants, and there is no legal basis to require common features between views. Therefore, we consider that existing legislation should provide protection for such an animated GUI, since the applicant in effect decides that the product is the series of different sports participants by filing a design with all of their images included. However, if the IPO is not of this view, then we consider that the legislation should be clarified to ensure that it is clear that such an animated GUI can be protected. In the sportsperson example, the designer will have put significant creativity and effort into thinking of and designing the look of the sequence of sports participants, and we feel that such creativity and effort should be protected.

In a similar manner, we note that the IPO in many cases will currently not allow a registered design application for an item shown in its packaging, since they consider the item and packaging to be different products. We consider that this view means that designers who design their packaging around the specific look of an item are unfairly not being protected for their work. For example, when designing the box for a smartphone, both the look of the box and the smartphone are fundamentally interlinked if the designer is considering how the user will enjoy opening their new smartphone box. We consider that the combination of the box and smartphone should be considered a single product because they are designed together. However, if the IPO is not of this view, then we consider that the legislation should be clarified to ensure that it is clear that, where the packaging and item are designed together, registered design protection can be granted.