UK Unregistered Design Right – Is It Any Clearer?

The provisions of the Copyright Designs and Patents Act 1988 ("CDPA 1988") which deal with the UK unregistered design right are notoriously poorly drafted and unclear. Almost two decades after the provisions came into force, Jacob LJ said in Dyson Ltd v Qualtex (UK) Ltd [2006] EWCA Civ 166:

"It has the merit of being short. It has no other ... The amount of textbook writing and conjecture as to the meaning is a testament to its obscurity. We just have to do the best we can, trying to arrive at "an interpretation which the reasonable reader would give to the statute read against its background" ... The absence of any clear policy, as to where the line of compromise was intended to run, means that brightline rules cannot be deduced".

In 2014, an attempt was made (in the Intellectual Property Act 2014) to clarify the provisions. The following underlined words in s. 213(2) were deleted: "In this Part 'design' means the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article". The...