UK design law consultation spotlight series: Search, examination, bad faith, and opposition/observation
The UK Intellectual Property Office (UKIPO) is currently consulting on significant reforms to the legal framework for designs. This long-awaited Consultation provides a rare opportunity for design businesses and stakeholders to have their say on shaping the future of UK design law.
The Consultation is due to close on 27 November 2025. Responses can be sent via the UKIPO’s Citizen Space portal (https://ipoconsultations.citizenspace.com/ipo/uk-designs-consultation/) or by emailing designsconsultation@ipo.gov.uk.
In this mini-series, we will cast the spotlight on each Consultation topic to provide a summary of the key issues, the options on the table, and insights on the way forward.
Our first article provides an overview of Section A of the Consultation, which addresses questions that are critical to the practical aspects of the design registration system: search and examination, bad faith applications, and the introduction of opposition or observation periods.
1. Search and Examination of Registered Designs
Background and rationale
Under the current UK regime, the UKIPO does not conduct substantive examination of design applications for novelty or individual character. This means that designs are registered quickly and at low cost, but potentially at the expense of validity and market certainty. The absence of prior art examination also runs the risk of making the register ‘cluttered’ with speculative or token filings that are obviously invalid, but never challenged. While some stakeholders believe that reintroducing search and examination would enhance the validity and credibility of registered designs and reduce the burden on third parties, others are wary of increased costs and delays.
The Government has outlined three main options for reform, while making clear that a return to full mandatory search and examination for all applications is not on the table at this stage, primarily due to concerns about cost and speed.
- Maintain status quo: This would maintain the current speed and affordability of the UK system, which is valued by many users.
- Registrar’s discretionary search: The UKIPO would be given explicit power at their own instigation to conduct searches and object to applications suspected of lacking novelty or individual character. However, this will only be in specific circumstances (e.g. applications for generic designs, re-filings of previously invalidated designs, or suspected bad faith).
- Introduce a two-stage system: This would be designed to mimic the Australian system under which applicants can obtain a partial registration quickly, but need to ‘certify’ the design before enforcing it. Under this model, the UKIPO would undertake a substantive search and examination post grant , to certify the design’s novelty and individual character.
2. Bad Faith Applications
Background and rationale
Bad faith design filing is a hot topic, with the UKIPO estimating that around 9% of filings made in 2023 appear to lack novelty. Stakeholders have also reported instances of bad actors relying on dishonestly obtained design registrations to legitimise the distribution of copycat products, and for marketplace take-downs of genuine articles.
The UKIPO is consulting on whether to introduce an explicit “bad faith” provision into UK design law, a move that could significantly reshape the registration framework. Currently, UK design law lacks a specific ground for refusal or invalidation based on bad faith, unlike trade mark law. The onus is on applicants to ensure their designs are new and possess individual character, leaving third parties to challenge problematic registrations through invalidation proceedings.
A “bad faith” provision would give the UKIPO the power to object to applications the Office deems to be filed in bad faith, which could include: applications for well-known products, applications using third-party photographs, applications which are re-filings of previously invalidated designs and “otherwise anti-competitive” designs (though the meaning of this is unclear).
As seen in respect of trade marks, the application of a “bad faith” test is complex and fact specific. Determining dishonest intent requires careful analysis of the applicant’s conduct, such as suspicious filing patterns or use of third-party marketing materials. To allay fears of inconsistency among UK IPO examiners, any introduction of a new “bad faith” test will require clear guidance on what may amounts to “bad faith” sufficient to merit a refusal. Further, the UKIPO will need to consider whether and how a “bad faith” provision can act as a sufficient deterrent (over and above current invalidity risks) to materially reduce the incidence of illicit applications in practice.
3. Opposition and Observation Periods
Background and rationale
Presently, there is no mechanism for third parties to oppose or comment on design applications before registration. The only remedy is post-registration invalidation, which can be slow and costly.
The Government has outlined four main options for reform:
- Maintain status quo
- Post-registration opposition period (“registered at risk”): This would introduce an opposition period (circa two months) during which third parties could still object to a registered design for a brief period post-grant.
- Pre-registration opposition period: This would introduce an opposition period (circa two months) following examination in which a design application would be published for opposition, much like the existing system for trade marks.
- Pre-registration observation period: This would introduce an observation period (circa two months) for interested third parties to submit observations objecting to the design, for the Examiner’s consideration.
A key concern with the introduction of any form of additional examination is the impact on the speed of obtaining a design registration. Any such measures would also put the UK system out of step with the EU, which refrained from introducing any substantive examination in its recent reforms of EU design law.
The publication of designs for opposition or observation purposes, whether pre or post grant, would also need to be carefully considered alongside the rules of deferment. Publication of the design will not destroy its novelty in the UK, but may create issues with novelty/grace period rules when filing in other jurisdictions.
4. Information on the existence of a right in a registered design (DF21 search)
It may come as a surprise to some that the UKIPO already offers a ‘prior art’ search of UK designs, via the DF21 form. However, there are low numbers of users of this service, with only 98 requests in 2023. The UKIPO is canvassing for views on the helpfulness of this existing service, to decide whether it should be maintained.
Consultation responses are likely to ask whether the UKIPO has the resources and technology required to carry out prior art searches reliably and swiftly. By their nature, design searches are imprecise and subjective, requiring visual identification and comparison of images. Whilst AI-powered image based searches are improving, the variable and inconsistent nature of images on the design register makes this a challenging task which is prone to error. Therefore, the benefits of pre-grant examination (whether mandatory or voluntary) will need to be weighed against the effort and resources involved in carrying out meaningful prior art searched.
Our thoughts
The UKIPO’s proposed reforms seek to balance the need for a robust, fair, and efficient design registration system with the commercial realities faced by designers and businesses. Whilst legal reform is unlikely to be at the forefront of designers’ busy agendas, any changes that are made to search, examination, bad faith, and opposition procedures could have significant implications for design protection strategies, ease of enforcement, and cost. All businesses who use the design system – or may want to use it in the future – should take the opportunity to have their say on the proposed options.
CMS is playing a central role in shaping and implementing design related policies and procedures in collaboration with the UKIPO and other stakeholders. Members of the CMS Design Team sit on the CITMA Design Law Committee (Kaisa.Patsalides@cms-cmno.com), INTA Design Law Committee (Sarah.Wright@cms-cmno.com) and IP Federation (Ben.Hitchens@cms-cmno.com) to help lead the conversation.
If you have any questions on the UK Design Consultation or have any other design queries, please do not hesitate to contact DesignLaw@internal.cms-cmno.com or the individuals listed above.
