11.18.
Action can be taken by the owner of a registered design if a third party copies a product the shape of which has been registered. However, registered designs protection is not available to protect a method or principle of construction nor if the shape of the product is dictated by the function it performs. Under the current law of the United Kingdom which applies in Hong Kong, "designs" are defined as :
"features of shape, configuration, pattern or ornament applied to an article by any industrial process, being features which in the finished article appeal to and are judged by the eye, but does not include
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a method or principle of construction, or
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features of shape or configuration of an article which
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are dictated solely by the function which the article has to perform, or
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are dependent upon the appearance of another article of which the article is intended by the author of the design to form an integral part."
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Unregistered design right
11.19.
The unregistered design right was introduced in the United Kingdom by the Copyright Designs and Patents Act (CDPA) to correct the over-protection given to functional objects by the law of copyright. Under the law of copyright functional objects were protected for about 50 years. The CDPA has now removed that copyright protection except where the object made from the drawings is itself an artistic work (such as a sculpture).
11.20.
The unregistered design right provides protection similar to that provided to functional objects under the former law of copyright. It is a wide right but has not as yet been fully tested. It is intended to protect certain original designs even if they are hidden from view and even if the shape is dictated by function. The term of protection is only up to 15 years, and conversion damages are not available.
11.21.
It is an automatic right in the sense that like copyright there is no need to register it. The definition of design is "the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article". A design is not 'original' if it is commonplace in the design field in question at the time of its creation.
11.22.
The owner of a design right has the exclusive right to reproduce the design for commercial purposes by making articles to that design.
11.23.
Certain matters are exempted from protection including methods or principles of construction and surface decorations. Further exceptions allow competitors to trade in spare parts, reflecting the decision in the British Leyland case that the owner should have the right to repair.
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