The UKIPO has launched its long-awaited consultation on reforming UK design law. The proposals are wide-ranging and, if implemented, could significantly reshape the UK's design protection framework. Steps are being proposed to deal with abuses taking place in the UK due to the low-cost registered design system, as well as to significantly change unregistered design law from its current complex structure.
Whilst this is very much a consultation on a variety of options, the UKIPO has made some initial proposals that look promising in achieving their goals of the design reform. The key issues and proposals are set out below.
A single unregistered design right
UK law currently provides unregistered protection for designs in a number of ways, including UK unregistered design right, supplementary unregistered design right and copyright. These rights offer different types of protection, provide different terms of protection and require different qualifications to arise. The unregistered design system has therefore been criticised for being too complex. On the other hand, as these different design rights protect different designs in different ways, they have been of immense use to original creators in preventing the copying of their designs, thereby providing significant benefit to design creators in the UK.
In what appears to be their main proposal, the UKIPO suggests consolidating these into a single unregistered design right, predominantly based around the current supplementary unregistered design right (which is similar to EU unregistered design right). They prefer a five-year term starting from first disclosure, and prefer the novelty and individual character requirements for validity rather than the commonplace test from UK unregistered design right.
Simultaneous disclosure – How unregistered design right arises
Following Brexit, the UK and EU now operate separate unregistered design regimes. Each right is triggered by first disclosure in its respective territory, with no mutual recognition, meaning designers must choose where to first disclose their work to secure protection. This has led to attempts at simultaneous disclosure—publishing a design in both the UK and EU at the same time—to try to secure protection in both jurisdictions.
The UKIPO has put forward a number of options for consultation to deal with this issue, but explicitly states that they currently have no preference. The options include unilaterally recognising simultaneous disclosure such that disclosures in the EU, or even anywhere the world, would result in UK unregistered design right arising. On the one hand, this would be very useful for UK businesses, who could first disclose in the EU or other country in the world to secure local protection, whilst knowing that they will still have protection at home. On the other hand, it will mean that many EU or even non-EU parties would automatically have unregistered design rights in the UK, potentially stifling the design industry in the UK.
Search and examination of registered designs
Since the start of this decade, there has been a noticeable increase in clearly invalid UK registered designs being filed and used in takedown notices on online marketplaces. This is very easy to do, since the official fee for a registered design is just £50 and the applications are not substantively examined, meaning that they will most likely be granted, even if the design shown has been public for many years.
Often, companies who have had their product listings taken down are unable to reinstate their listings due to a combination of online marketplaces' policies of only reinstating listings after a complainant withdraws their complaint, and the complainants simply not responding to any communications highlighting that their registration is invalid and asking them to withdraw it.
In addition, recent UKIPO design invalidity decisions show that many invalidity applications are being filed against blatantly invalid registrations. A recent decision even involved the rights holder effectively admitting that their registration was invalid; but it still took six months for the registration to be invalidated. The UKIPO's research suggests that about 9% of registered designs are pre-existing and thus invalid.
The UKIPO has proposed various options in the consultation to enable such abuses to be dealt with. Firstly, they are considering introducing powers to allow them to search design applications when they suspect they are already known. Secondly, they are considering implementing a system similar to that in Australia, in which a rightsholder has to request search and examination before they can enforce it, and third parties can apply for registration to be searched and examined. Thirdly, the UKIPO is proposing to introduce a bad faith provision, which would give them flexibility in dealing with such abuses in future. Fourthly, they propose introducing mechanisms for opposition and/or observation by third parties.
Changes to deferment periods for registered designs
Currently, there is no statutory provision for deferment in UK design law, but the UKIPO allows deferment of publication for up to 12 months from the UK filing date. The UKIPO proposes to formalise and extend this to 18 months from the earliest of the filing or priority dates. However, this change would not increase the deferment period for UK designs claiming priority from foreign applications. Compared to the EU, which offers a 30-month deferment period, the UK's existing shorter deferment and the proposal makes it a less attractive jurisdiction for first filings.
Animated designs and GUIs
The UKIPO has historically objected to design applications that depict animated graphical user interfaces (GUIs), such as transitions, loading animations, or dynamic icons. This has caused frustration among applicants and their representatives, particularly as the EUIPO routinely accepts such designs under similar legislative definitions.
The consultation raises various options in relation to this, including updating the legal framework to explicitly allow protection for animated designs, including the use of new file formats such as video clips and CAD files, to better represent movement and interactivity. Based upon our experience, we think that applicants would greatly appreciate having the ability to register their animations, particularly to reflect the amount of creative work that takes place to generate them.
Criminal sanctions for unregistered design infringement
A call for evidence has been issued on whether criminal penalties should be introduced for infringement of unregistered design rights. This would mark a significant shift in enforcement strategy and could have far-reaching implications for rights holders and alleged infringers.
Criminal sanctions were introduced for registered design infringement in 2014, but we are not aware of any clear data indicating how much these sanctions have been used, other than in a single, recent case before the Court of Appeal.
Next steps
Responses to the consultation are due by 27 November 2025. We would urge any parties with an interest in the consultation to file a response (even just to a part of it) as the UKIPO is looking for as many views as possible. The link to the consultation is here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
