His Honour Judge Hacon said that changes to the Copyright Designs and Patents Act 1988 introduced by the Intellectual Property Act, which came into force in October, could be interpreted as restricting claims of unregistered design rights to non-abstract features.
The judge, however, did not rule definitively on the matter as he deemed that the issue was not central to the resolution of a design rights dispute he was ruling over.
However, he said that his interpretation of the new Act helps to resolve an anomaly that exists between the definition of 'design' under the existing UK Copyright, Designs and Patents Act (CDPA) and the definition of the word under the EU's Design Regulation, which relates to Community design rights.
"There is no reason to suppose that parliament intended the new definition of 'design' in [the CDPA] to be identical to that in the Design Regulation and plainly it isn't," the judge said. "However for policy reasons of consistency where that can be achieved, there is much to be said for treating 'the design of the shape or configuration (whether internal or external) of the whole or part of an article' as having a meaning as close as possible to 'the appearance of the whole or part of a product'."
"One route to such a result would be to interpret the effect of [the changes made to the definition of 'design' under the CDPA by the Intellectual Property Act] as being that it no longer permits a claim to unregistered design right to extend to designs other than those specifically embodied in all or part of the claimant's article, i.e. no more UK unregistered design rights in abstract designs," he said.
Under the new Act, the definition of 'design' was amended in the CDPA to remove the words 'any aspect of'. 'Design' had previously been defined as "the design of [any aspect of] the shape or configuration (whether internal or external) of the whole or part of an article".