UK Design Law Consultation Spotlight Series: Section G Post-Brexit Disclosure

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 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.

This seventh instalment provides an overview of Section G of the Consultation, which addresses the long-standing question of “first disclosure” of unregistered designs post-Brexit: can the UK Supplementary Unregistered Design Right (SUDR) co-exist with its EU counterpart, formerly known as the Community Unregistered Design (CUD)?

“First” disclosure – What’s the issue?

How we got here

Long before Brexit took the UK out of the scope of the EU Community Unregistered Design regime in 2021, a debate had been brewing in legal circles on the true meaning of “making available to the public” in the context of vesting design rights in a new design. The post-Brexit creation of SUDR added fuel to the fire, creating uncertainty as to whether SUDR was capable of co-existing with the EU-wide right from which it originated. Some argued not, on the basis that in both cases the design had to be “first” disclosed within the geographic bounds of the relevant territory – making it impossible for designers to qualify for both. Others took the view that EU law had been misinterpreted on this point, and that the physical location of the “first” disclosure was not decisive – but rather the design right arose when the design became “known” to the relevant trade circles in the relevant territory (subject to any novelty-destroying prior disclosure on an earlier date).

In adopting SUDR into UK law, the UK Government took the view that a single disclosure does not give rise to protection in both territories. This has required designers across Europe to re-evaluate their launch strategies, making the UK’s fashion and trade show scene less attractive for designers wishing to secure unregistered rights in the remaining EU27 member states. Meanwhile, no further guidance has emerged from EU case law to confirm the “first disclosure” requirement for CUD. However, a provision which had prompted some national courts to favour a strict approach to first geographic disclosure was quietly removed from the revised EU Designs Regulation in 2025.

Where we are

To fill the vacuum of legal uncertainty and lack of clear guidance, many businesses have opted for strategic ‘simultaneous disclosure’ strategies, involving online product launches directed at both territories or simul-casting of launch events. Such strategies are risky and untested by the courts, casting doubt on the validity of any UK or EU design rights claimed as a result. 

The UKIPO is also acutely aware of British businesses being at a potential disadvantage of having to choose between claiming design protection either “at home” in the UK, or in the EU market comprising 27 countries and 450 million consumers. Whilst registered design protection remains available in both territories in parallel, in many industries (such as fashion or consumer electronics) registration is not a commercially viable alternative to automatic short-term protection for large and fast-changing product portfolios.

Where we could go next

Responses to the UKIPO’s 2022 pre-consultation Call for Views expressed concerns about complexity, expense and uncertainty resulting from the above. It overwhelmingly called for clarity in respect of disclosure for SUDR. The Consultation now puts forward a number of options for resolving that dilemma.

A mixed bag of options

What probably won’t happen

The UKIPO has suggested ruling out the option of re-opening negotiations of the UK/EU Exit Agreement, in order to seek reciprocal recognition of “first” disclosures with the EU. Opinions are split on whether such renegotiation is actually needed, if the corresponding laws could simply be re-interpreted.

The UKIPO is also wary of opening up SUDR to any and all disclosures made abroad, and favours retaining an ‘obscurity’ carve-out. This would ensure that rights are not conferred on designs which could not reasonably have become known to the relevant UK trade circles. Most respondents are expected to be aligned on this.

Whilst the UKIPO also puts forward the ‘Option Zero’ of ‘doing nothing’ and retaining the status quo, it seems unlikely that it would waste the opportunity to resolve what is considered to be among the most thorny issues in the current system.

What’s more likely

The following options are the more likely candidates for future reform:

• option 1 - unilaterally recognising ‘simultaneous disclosure’ in law
• option 2 - introducing a grace period for unregistered designs
• option 3 – creation of SUD following first disclosure anywhere in the EU which has come to the attention of relevant trade circles in the UK 
• option 4 - creation of SUD following first disclosure anywhere in the world which has come to the attention of relevant trade circles in the UK

Option 1 would involve legally recognising that the simultaneous disclosure of a product both in the UK and abroad could give rise to SUDR protection, provided that the ‘UK’ disclosure becomes known to the relevant circles inside the UK. The Consultation paper gives the example of a disclosure at a fashion show outside the UK which is live-streamed on the internet and available in the UK.

On the upside, Option 1 could offer the benefit of certainty that SUDR is not necessarily lost by ‘first’ showing a design outside the UK. However, it would need to be subject to clear criteria on what is deemed “simultaneous” (the options on the table range from ‘exactly the same time’ to ‘same day’ or ‘some other length of time’) and what counts as a qualifying “UK disclosure”.

Option 2 would go further than recognising ‘simultaneous’ disclosure. It would allow a first disclosure of a design outside the UK to give rise to SUDR, provided that the design is subsequently disclosed or sold in the UK within a certain period of time – with options ranging from less than a month to 6 months, or longer.

A brief “grace” period would recognise the realities of international commerce by taking the emphasis away from the physical location of a “first” disclosure. This would allow UK businesses to formulate their launch strategies freely, without concerns about a loss of rights at home. However, the broader impact of this option would depend on how strictly the requirement for “disclosing or putting on the market in the UK” is applied, and how this differs from the design simply “becoming known” in the relevant UK trade circles.

Options 3 and 4 contemplate the UK unilaterally (with no expectation of reciprocity) recognising disclosures made abroad as giving rise to SUDR, provided they come to the attention of the relevant UK trade circles. These options could be adopted either with, or without, a corresponding “grace” period which requires such products to be put on the market in the UK within a set period of their global launch.

The net of qualifying overseas disclosures could be cast widely to recognise disclosures made anywhere, or potentially be limited to the EU (or some other subset of qualifying countries). However, there is a potential concern that imposing any territorial limitation on the “location” of a qualifying first disclosure would be arbitrary and difficult to apply in an age dominated by e-commerce and virtual online product launches. Some would also say that the UK should be looking further than the EU in defining the range of “disclosures” that could potentially qualify for SUDR, to give UK businesses maximum flexibility on where to launch their products.

Our thoughts

CMS’ view is that the law should provide greater clarity and more flexibility for UK businesses to formulate their product launch strategies freely and with confidence, without a loss of rights at home. With that in mind, we would favour an approach that opens the door for overseas disclosures to be eligible for SUDR protection provided that, either:

(i) They are ‘simultaneously’ (i.e. on the same date) launched in the UK as well, as long as there is sufficient clarity on what is required for a UK “launch” event to qualify. We also acknowledge the argument (supported by many academics) that the law already provides for this option, but if so, we believe it still requires reform through clarification to remove the ‘grey area’ that subsists.

or:

(ii) The first disclosure becomes “known” to UK trade circles and the product is placed on the UK market within a specified “grace period” of its first disclosure. This would help avoid a ‘floodgates’ effect of indiscriminately protecting any design with SUDR, wherever created and commercialised, simply because it might be ‘known’ to UK trade circles even if it never enters the UK market.

Overall, if ‘simultaneous’ disclosure is seen as overly rigid and out of step with modern product launch strategies, we believe the introduction of a ‘grace’ period would be a welcome opportunity not only to remove the arbitrary requirement for a “first” UK disclosure, but also to help preserve SUDR for those designs where there is a legitimate interest in commercial exploitation in the UK.

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.