Although less valuable than a registered design, these forms of protection arise automatically as soon as a new design is recorded in a design document or prototype.
Aside from the automatic nature of unregistered protection, the most important difference is that the unregistered rights only restrict third parties from copying the design in question.
There are 2 slightly different forms of unregistered protection in the UK and elsewhere in the EU: UK Unregistered Design Rights (or UDR): This applies to an original or new product design which has not been copied from another design.
Surface ornamentation as well as designs which must fit or match other products are excluded. The UDR potentially lasts for 10 years after the first marketing of the product. In the last 5 years of the unregistered protection, third parties are entitled to ‘Licences of Right’ in respect of any act which would otherwise infringe the UDR.
If the parties cannot agree the terms of a Licence of Right, such as the licence fee or royalty, the terms will be imposed by UK Intellectual Property Office. EU Unregistered Community Design (or UCD): This applies to product design which is new and has individual character (on the same basis as a registered design).
The UCD lasts for only 3 years after the design was first made available to the public anywhere in the EU. The owners of unregistered designs have up to 12 months from the first marketing of the product to make an application for a registered design.
After this period, the fact that the unregistered design has been made available to the public will mean that the design is not sufficiently new to be capable of being registered.