Computer software designers and Registered Designs

Directive 98/71/EC of the European Parliaments and of the Council of 13 October 1998 on the legal protection of designs (OJ L289, 28.10.1998) was implemented throughout the EU by virtue of the Community Design Regulation (CDR) (OJ L3, 05.01.2002). At the end of 2006 the European Council confirmed that the EC will become a signatory to the Geneva Act of the Hague Agreement concerning the International Registration of Industrial Designs. This will allow applicants to obtain registered designs across the EU as well as in non-EU countries that are also signatories of the Geneva Act.

In the UK the CDR caused amendments to the Registered Design Act 1949 and has now generally made the registration as designs of computer icons, graphical user interfaces and web pages, a real opportunity for software developers and program owners.

Before the CDR, the UK, like many other member states, defined 'design' in terms of “features of shape, configuration, pattern or ornament applied to an article by any industrial process…” and the definition of 'article' was defined as “any article of manufacture and includes any part of an article if that part is made and sold separately.” This set of definitions meant that computer generated images and icons were prevented from protection.

Under the Registered Design Act 1949 (before amendment) in the United Kingdom, the narrow definitions of registered designs meant that in the case of computers, icons and symbols could only be protected if they were displayed directly as a result of information used to define and generate those symbols and therefore icons produced by software such as word processing programs were not capable of registration as they were not an integral part of the computer. Apple computers were successful in obtaining UK registered design no. 2094032 for “computer display screens with computer generated icon” but this was after an appeal tribunal hearing.

The CDR as now implemented means that the definition of design under section 1(2) of the UK Registered Designs Act 1949 as amended reads “… the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product or its ornamentation.”. Moreover, product is now defined as “any industrial or handicraft item other than a computer programme: and in particular, includes packaging, get up, graphic symbols, typographic typefaces and parts intended to be assembled into a complex product.”

The UK law and no doubt laws in other EU member states are now able to provide greater registered design protection for computer designers and computer vendors. It is possible to register all sorts of images generated by computer, displayed on screens, mobile phones, digital watches, digital cameras and MP3 players.

It has been suggested that the range of examples of what may be included within the definition of 'Product', including “get-up”, “graphic symbols” and “typographic typefaces” shows that the term is to be interpreted broadly. Whilst computer programs are excluded from the definition of product this is only as regards the computer programs themselves (ie the lines of code and the functionality). Specific graphics which are produced by computer programs, such as icons, are likely to be considered protected as symbols.

It must be remembered that for graphics or symbols to be registered they must also be new and have individual character. This means that the design must not be identical to an existing design but there are no barriers to the registration therefore of new computer icons, graphical user interfaces, webpage designs or other computer generated symbols which were previously unregistered on the grounds that they were not applied to an article.

A registered design once granted lasts for 25 years and is an aggressive method of protection.

For more information contact robert.bond@speechlys.com