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Journal of Intellectual Property Law & Practice Advance Access published online on October 11, 2006
Journal of Intellectual Property Law & Practice, doi:10.1093/jiplp/jpl152
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© The Author (2006). Published by Oxford University Press. All rights reserved.

State of the art

Qualification for design right: ‘springing interests’

Phillip Johnson 1 *
1 Barrister, Legal Adviser, DTI Legal Services (Adviser to the Patent Office)


  Abstract

Legal context An unregistered design can qualify for protection under the Copyright, Designs and Patents Act 1988 in a number of ways. However, as the European Community expands the qualification provisions in the Act come into conflict with Community law and the European Convention of Human Rights. This article sets out those issues and seeks a solution to them.

Key points This article begins by examining how a design qualifies for protection, by reason of the designer, the commissioner or the employer; or alternatively by reason of the person who first markets it. It then looks at the impact of new members joining the European Community and how this might create springing interests in design right. It then tries to reconcile the right in the EC Treaty not to be discriminated against on the grounds of nationality with the right to quiet enjoyment of property under the ECHR.

Practical significance This article considers the ownership of design right and springing interests. It will therefore be of interest to anyone who owns a design right by reason of the design being first marketed in the United Kingdom.

* This article represents the author's own view and not that of the Department of Trade and Industry or the Patent Office.
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