Designs are one of the key IP rights for the gaming and fashion industries but they are complex and consequently poorly understood. There are two key categories of design: registered and unregistered designs. They are best known for protecting three dimensional products but a little known fact is that they can also protect logos and graphical user interfaces. Given the shift to remote and virtual living, protecting digital assets is more important than ever.
The European Commission recently published its evaluation of EU legislation on design protection. The evaluation finds that the EU legislation on designs is broadly fit for purpose, but it also recommends that designs legislation be updated to further embrace the digital age.
The Commission noted that there remains a lack of clarity about how to protect graphical user interfaces (GUIs) or icons as designs and the possibility to file dynamic as well as static views of designs.
GUIs are an essential part of every business nowadays - from a website to an app interface to more bespoke software. They are particularly important for the gaming industry. The evaluation reports that RCD applications in Locarno Class 14 (which covers high-tech products) are growing faster than most other fields: RCD filings in sub-class 14-04 (which covers GUIs and icons for computers) increased from c.500 in 2004 to c.4,000 in 2019.
Need for reform?
The Commission found that there isn't really a need to reform so much as a need to educate people that virtual designs are available and that they can protect animated designs and graphical user interfaces.
In particular, the Commission discussed the possibility of filing dynamic (as well as static) views of designs, and widening the notion of a "product” to manifestations that are not physically defined as 2D or 3D objects (such as animated designs and GUIs).
These sound like sensible proposals that would make the design system more accessible and would benefit businesses, particularly those in tech including gaming.
Beware of Brexit
Any changes to the EU design regime will not apply to the UK as they will take place after the Brexit transition period has ended on 31 December 2020. Unless the UK implements the same changes, this may be the start of divergence between the EU and UK design regimes.
It is also a timely reminder to file EU registered design (i.e. RCD) applications now, before the transition period expires on 31 December. 2020. Under the transition agreement, any RCDs registered by the end of the year will be automatically converted to UK rights.
Any pending RCD applications will be put in limbo for 9 months. If a UK filing is made in that time (i.e. before 30 September 2021), then protection can be claimed back to the priority or filing date of the RCD. These new applications will be examined under UK law and a new UK fee will apply.
The EUIPO registers most design applications very quickly – sometimes in a few days. However, with a last minute rush and the inevitable staff absences in December, there is still time to get an RCD registered before 31 December – but don’t leave it too late!
To find out more contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com
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