The law applicable to unregistered design right is found in the Copyright, Designs and Patents Act 1988. As with copyright, unregistered design right is a right that arises automatically and does not depend on a formal registration procedure.

Unregistered design right may apply to any aspect of the shape or configuration (whether internal or external) of the whole or part of an article provided that the design is "original". The test here is whether or not the design is "commonplace" in the design field. Unregistered design right can apply to the internal or external part of an article and there is no requirement for "eye appeal" as there is with registered designs. Therefore purely functional designs can be protected by unregistered design right as there is no requirement for the design to have aesthetic qualities.

Items not protected by unregistered design right
Unregistered design right will not subsist in a number of items. The main exceptions are as follows:-

Methods or principles of construction. Particular features of shape or configuration as applied to an article are protected but the general theoretical or underlying principles will not be protected by unregistered design right;

Surface decoration - as this does not come within the category of functional design which the Copyright, Designs and Patents Act 1988 set out to protect;

Features of shape or configuration which enable the article to be connected to, placed in, or around or against another article so that either article may perform its function. This is know as the "must fit" exception. The exception is confined to situations where two articles are linked and certain features of shape or configuration enable either article to perform its function;

Features of shape or configuration that are dependent upon the appearance of another article of which the article is intended by the designer to form an integral part. This is known as the "must match" exception. This exception in particular was introduced so that manufacturers could not create a monopoly on spare parts for cars through the law of unregistered design right.

Ownership of unregistered design right

Where the design is not commissioned and not created in the course of employment, the designer will be the first owner of the unregistered design right. The commissioner and the employer are the first owners of the unregistered design right created in pursuance of a commission or employment respectively. Joint first ownership is also possible where the contribution of more than one designer has been made to the design and the contribution of each cannot be distinguished

Duration of rights

Unregistered design right expires 15 years after first recording of the design in a design document or an article was first made to the design, whichever is the earlier.
A qualification to this is that if the design or an article incorporating the design has been marketed anywhere in the world within the first five years of recording or making, then the period of protection is 10 years from the first date of this activity. During the last five years of the existence of the unregistered design right, anyone is entitled to obtain a licence to use the protected design on payment of royalties to the owner of the unregistered design right.

Infringement of unregistered design right

The owner of an unregistered design right has the exclusive right to reproduce the design for commercial purposes. Anyone who copies or reproduces the design is infringing the unregistered design right. In addition if anyone who, without the permission of the unregistered design right owner, imports, possess, sells, hires or offers to expose in the course of a business a design that has been infringed, then this is classed as secondary infringement of the unregistered design right.