The UK has released a “Draft UK-EU Comprehensive Free Trade Agreement” as part of setting out its approach to negotiations with the European Union (see here). This is a draft text covering substantially all trade after the transition period intended to form the basis for discussions with the EU. Chapter 24 relates to Intellectual Property and Article 24.28 is concerned with unregistered designs.
It proposes that disclosing a design in the territory of the EU or the UK will satisfy the disclosure requirement for both an “unregistered Community design right” in the EU and a “supplementary unregistered design right” in the UK.
This is important for UK and EU designers. Case law currently suggests that designs first disclosed outside the EU (which would include the UK after the transition period) will novelty-destroy rights to unregistered Community design protection in the EU. This proposal lumps the EU and UK together, such that an EU or UK designer could first disclose a design in the UK without that design destroying the novelty required to obtain an unregistered Community design right. Similarly, first disclosing in the EU will not deprive a designer of the right to the supplementary unregistered design protection in the UK.
It is not yet known whether the EU will agree to this approach and, if it does, how this article will be altered by negotiations. However, this helpfully sets out the UK’s position.