Overhauling UK design law: consultation opens wide

The government has recently launched a wide ranging consultation aimed at overhauling UK design law in order to modernise the system. The consultation follows on from a survey conducted earlier in the year, which confirmed that smaller business and sole designers find the system too complex to understand. The consultation provides an opportunity for anyone with an interest in these issues to share their views on the proposals in it. The deadline for providing views is 27 November 2025.

The consultation document is 94 pages long. This article digests that into something you can read in ten minutes in the likely event that you don’t have the time to plough through the whole thing. If you wish to respond to the consultation or any part of it and need support, please get in touch.

Objectives

The consultation has five overarching objectives, namely:

1. Improving the registered designs system.
2. Simplifying the unregistered designs system.
3. Addressing changes in how disclosure of unregistered designs are recognised post-Brexit.
4. Addressing enforcement issues, including a call for evidence on criminal sanctions of unregistered design infringement and the inclusion of registered designs in the Intellectual Property Enterprise Court small claims track.
5. Proposing some smaller changes to simplify and streamline design protection.

Areas for reform

The consultation is divided up into nine sections, with each section addressing different subject matter and, in many cases, advancing options for reform. We address each of those here.

Section A: search, examination, bad faith and opposition

The current system allows for designs to be registered even if they are not new or lack individual character, as the Intellectual Property Office does not perform a full search or examination. Currently, the only way for a third party to challenge an invalid design is to pay a fee and apply for its invalidation, which can be time-consuming and expensive. The consultation outlines three main areas for reform:

• Search and examination options The IPO is not considering a return to full, mandatory searching due to the potential for increased costs and delays. Instead, it proposes two options: (1) introduce limited searching powers (e.g., in specific, suspicious cases, such as when an application appears to be for a generic product, is a re-filing of a previously invalidated design, or shows other signs of anti-competitive intent); or (2) introduce a two-stage system, involving a "partially registered" stage where a design is quickly registered without a search, but to enforce the design second stage would require a search and examination for a fee.
• Bad faith provisions UK design law currently lacks a specific bad faith provision. The IPO proposes introducing one to give it clear authority to object to applications filed with dishonest intent.
• Opposition and observation periods Currently, third parties can only challenge a design through invalidation after it has been registered. Three options for reform are proposed: (1) a post-registration opposition period (proposed as two months) during which third parties could oppose the registration; (2) a pre-registration opposition period where the design would be published and third parties would have a two month period to file an opposition; (3) a pre-registration observation period, which would allow third parties to submit "observations" on a design before it's registered which the IPO could then use to object to the design.

Section B: deferment of registration and publication

Currently, UK law allows applicants to delay the registration and publication of a design for up to 12 months (this is useful where a product has a long development cycle and the design needs to remain confidential). As, no information about the deferred application is made public, there is a risk  a third party might unknowingly invest in a product that later infringes on a previously filed, but deferred, design.

For these reasons, the IPO proposes a new, express deferment provision in the legislation for an 18 month period, for both registration and publication starting from the earliest of the application's filing date or its priority date.

The consultation also addresses the issue of prior use. Currently, a third party who starts using a design in good faith after the original application date (but before the deferred design is registered) is not protected by prior use provisions. This means they could be forced to stop using their product once the deferred design is published and registered. The IPO is seeking views on whether to extend prior use provisions to include deferred designs.

Section C: animated designs and graphical user interfaces (GUIs)

The current system for protecting digital designs requires applicants to file a series of still images or "snapshots" for animated designs. This method is problematic because the different stages of an animation can be misinterpreted as multiple designs, leading to uncertainty.

The consultation presents four primary options, which can be implemented alone or in combination: (1) provide further guidance; (2) update the definitions for “design” and/or “product” in the legislation to expressly include animations, transitions and GUIs; (3) allow applicants to use new file formats when filing applications (e.g. video files such as MPEG and MP4) for animated designs and/or CAD files for physical designs; (4) allow applicants to file an optional written description alongside their still images or video clips, and for this description to be made public as part of the registration.

Of course, these options also raise some further issues. For example, allowing new file formats may not be compatible with the systems in other countries and it is also necessary to consider whether rights should also be extended so that they enable the right holder to prohibit creating, downloading, or distributing software that records a design.

Section D: computer-generated designs

UK registered and unregistered design law currently includes provisions for designs that are computer-generated without a human author. In such cases, the "author" is considered to be the person who made the arrangements necessary for the creation of the design.

These provisions do not sit particularly well with other parts of design legislation – for example, an unregistered design is required to be “original”, whether through "sufficient skill and labour" or a "personal touch", and these are inherently human-centric concepts. It is not clear how they might apply when a design is created entirely by a machine.

Another key concern is the potential for AI to produce a massive number of designs in a very short time. If these designs are protected, they could flood the market, making it more difficult for human-created designs to meet the novelty and individual character requirements for protection. This could ultimately stifle human creativity and innovation.

The consultation presents three main options for addressing these issues, along with a supplementary one: (1) maintain the existing provisions (the IPO believes this option should be discounted unless there is significant evidence of its benefit); (2) redefine the originality requirement in unregistered design law to resolve the contradiction with computer-generated designs; (3) remove the existing provisions for computer-generated designs with no human author (the IPO’s preferred approach) and; (4) gather data on the use of AI in the creation of registered designs to improve the IPO's understanding of AI's role in the designs sector.

Section E: miscellaneous provisions

These include the following and are intended to simplify and streamline the design system:

• The IPO proposes a new provision to allow the refusal of a design that contains content prohibited by other laws (e.g., the Red Cross emblem), even if it's not on the current specific list of prohibited items.
• To streamline the application process, the IPO suggests allowing examiners to raise all objections (substantive, formalities, and representation issues) at the same time, with a two-month time limit to respond to these.
• The IPO proposes to remove the ability to file physical specimens of a design (a practice which is rarely used).
• The IPO suggests a new power to share unpublished applications with relevant authorities (like heraldry experts or the Red Cross) to help them fulfil their statutory duties.
• If a new opposition or observation period is introduced (as discussed in Section A), the IPO proposes introducing a "late objection" provision, allowing the registrar to object to a design that has already been accepted if new information comes to light during the opposition period.
• The IPO proposes to introduce provisions that clarify that the registrar does not guarantee the validity of a registered design and limits the liability of the registrar for their official acts.
• The IPO suggests allowing a more accessible route for correcting errors on the register. Currently, this can only be done through a court application. The proposal would allow for rectification requests to be made to the registrar.
• To reflect modern practice, the IPO wants to update the RDA to explicitly state that information about registered designs should be available online.
• The IPO seeks to broaden its power to create and update forms for any purpose related to the designs process, not just the three specific categories currently allowed, making it quicker and easier to improve forms.
• The IPO is reviewing its process for priority claims. Its preferred option is to simplify the process by only requiring the applicant to provide details of their priority claim, without needing to submit a declaration of identicalness or a priority document.

Section F: simplification of unregistered design rights and overlap with copyright

The UK's design protection system is complex - a result of the historical evolution of design and copyright law.

Notably, there are currently two distinct unregistered design rights: the UK unregistered design right (for shape and configuration) and the Supplementary Unregistered Design (SUD) (for overall appearance, including surface decoration). They have different terms of protection, qualification requirements, and scope, which is difficult for users to navigate.

Additionally, the distinction between copyright and design protection has become unclear over the years. This is particularly true for "works of artistic craftsmanship," such as furniture or jewellery, which can now benefit from both design protection and a longer copyright term.

• Proposed solutions for unregistered designs  The consultation presents two main options to simplify the unregistered designs framework, along with the option to make no changes, namely: (1) abolish design right, leaving only SUD and; (2) consolidate the two design rights into a single unregistered design right with the best aspects of both (the IPO’s preferred option). To achieve this, the IPO is considering harmonising key aspects such as the qualification for and term of protection as well as other aspects.
• Proposed solutions for copyright overlap The consultation considers three options: (1) make no changes to copyright law (the IPO's preferred approach which it believes already strikes a good balance by preventing copyright from over-protecting purely functional items and stifling innovation); (2) making legislative changes to clarify what is meant by “artistic craftsmanship” or remove it from the scope of copyright protection entirely; (3) update copyright exceptions to address specific use cases where the overlap between copyright and designs is problematic.

Section G: post-Brexit issues relating to unregistered design

Prior to Brexit, a single disclosure of a product anywhere in the EU automatically created an unregistered Community design (UCD), providing protection across all Member States, including the UK. Following Brexit, this changed. The UK introduced a new Supplementary Unregistered Design (SUD), which provides protection only when a design is first disclosed in the UK. The EU still provides UCD protection, but only for designs first disclosed within the EU. This has created a "trap for the unwary," where a UK designer who first discloses their product at a major trade show in the EU (e.g., Paris or Milan) loses their unregistered protection in the UK, and vice versa.

The consultation offers several options to address this issue and provide more legal certainty: (1) do nothing (which obviously will not provide more certainty); (2) unilaterally recognise simultaneous disclosure in the UK and another country, noting that this may not be reciprocated by the other country; (3) introduce a grace period for designs disclosed outside of the UK to allow then to still qualify for protection in the UK within that period; (4) make creation of an SUD dependent upon first disclosure anywhere in the EU (this would be for the benefit if UK businesses, rather than EU businesses); (4) make creation of an SUD dependent upon first disclosure anywhere in the world (again for the benefit of UK businesses).

Section H: criminal sanctions for design infringement

The Intellectual Property Act 2014 introduced a criminal offence for the intentional copying of registered designs in a business context, but not in relation to unregistered designs. The issue of criminal sanctions applying in the case of unregistered designs was the subject of consideration in an earlier consultation on 2022, which yielded mixed responses.

As unregistered design rights are automatic and not recorded on a register, it is difficult to gather verified, non-anecdotal evidence of infringement. The government requires statistical data and legal analysis to build a strong case for any legislative change. It has therefore requested detailed, quantifiable evidence from all interested parties to help them assess the need for, and potential impact of, a new criminal offence. In other words, rather than making any legislative proposals, it is laying the groundwork for a future policy decision.

Section I: including registered design claims under the IPEC small claims track

Currently, the IPEC's small claims track only hears cases related to copyright, registered UK trade marks, passing off, and UK unregistered designs. Registered designs are explicitly excluded. This exclusion, which dates back to the small claims track's introduction in 2012, was based on the concern that registered design cases were too complex, often involving detailed investigations into the design's validity and the use of expert witnesses. The consultation acknowledges a long-held view among some stakeholders that this exclusion creates a problem for access to justice.

A 2020 review of the IP enforcement framework showed a mixed response, with most stakeholders supporting the inclusion of registered designs in the SCT but others maintaining concerns about complexity. To resolve this debate and inform a future decision, the government is calling for specific evidence from users. Again, as with consideration of criminal sanctions for unregistered design, here the consultation is not proposing a solution but rather asking for data and detailed feedback to determine if and how to proceed with the inclusion of registered designs in the IPEC small claims track.