UK Design Law Consultation Spotlight Series: Simplification

Section F: Simplification of Unregistered Design Rights

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.

Our sixth article provides an overview of Section F of the Consultation, which addresses the often-bemoaned complexity of the UK unregistered designs regime, including its overlap with copyright law. Options are on the table for simplification and harmonisation of the system – but at what cost to designers? And should a desire for maximum simplification take priority over maximum protection?

A complex framework

The UKIPO acknowledges the “patchwork” of overlapping rights protecting designs in the UK, ranging from registered designs (including those ‘cloned’ from legacy EU rights) to two different types of unregistered design right, as well as copyright. There is particular tension in the law between the domestic UK regimes for unregistered design right and copyright, which were originally regarded as separate and distinct rights but which have since evolved towards greater overlap and duplication, largely through EU influence. Combined with inconsistent scopes of protection, duration and qualification criteria, UK design law is a tangled web of rights which is prone to confusing even the savviest of design businesses.

In the context of a design sector dominated by small businesses, this matters, because design rights are only effective and valuable if they are well understood and widely used by those they seek to benefit. The response to the UKIPO’s ‘Call for Views’ in 2022 (reported by Law-Now here) made it clear that the current system is neither, signalling an urgent need for action. The present Consultation seeks to gauge whether that action should take the form of simplification, consolidation, or education.

The case for simplification

Despite a call for greater simplicity, there is a growing sentiment that ‘simplification’ should not come at the expense of protection or a loss of rights. Arguably, designers still get a greater benefit from rights they may not realise they have, rather than from the simplicity of not having them at all. Likewise, the availability of multiple alternative forms of protection will rarely be a disadvantage for a designer wishing to enforce their rights.

Accordingly, the UKIPO proposes to rule out:

• Abolishing Supplementary Unregistered Design Right (SUDR) in favour of retaining UK design right alone
• Abolishing UK design right in favour of expanding the scope of copyright to cover purely functional articles

Removing SUDR would have the effect of removing design protection for surface decoration and 2D designs. This would hit major industries such as fashion and consumer electronics which rely heavily on the protection of 2-dimensional designs including surface decoration, colours and patterns, screen animations and graphical user interfaces.

Conversely, expanding copyright to functional designs would materially increase the term of protection for such products, arguably over and above what is reasonable to expect for utilitarian and commercially motivated products. For that reason, the UKIPO advocates for keeping those rights separate.

The UKIPO also discounts simply improving the available guidance on the current regime, on the basis that better guidance alone is not a solution to the underlying complexity of the system.

The options for consolidation

The options presented by the UKIPO are:

• Option 1 – Abolishing UK design right and retaining SUDR
• Option 2 – Consolidating the unregistered designs framework to harness the benefits of both UK design right and SUDR, either through greater harmonisation of their provisions, or through the creation of a single, unified design right

Option 1 represents the “maximum simplification” route, by eliminating one of the two overlapping but unharmonized unregistered design regimes. However, the loss of UK design right would be a serious blow to industries for whom the protection of purely functional designs is paramount. That protection would not be matched by the protection conferred by SUDR or indeed registered designs, both of which exclude designs ‘solely dictated by technical function’ from their scope.

UK copyright law also limits the protection available to 3-dimensional designs that are not ‘artistic’ in nature. Therefore, the abolition of UK design right would create a legal ‘vacuum’ for designs in many industries, including furniture, consumer tech, medical equipment and construction.

Option 2 favours a move toward “maximum protection”. It seeks the best of both worlds by adopting a consolidated design right that would protect all aspects of a design, both aesthetic and functional. This could range from light-touch harmonisation of term and qualification requirements, to a wholesale ‘delete and replace’ of the current laws in favour of a new, unified design right. The Consultation asks for views on which option is preferred.

Signalling a preference for using the SUDR regime as the starting point, the UKIPO also points to specific aspects of the regime where the approach to consolidation would need further thought:

• Rules of proprietorship and ownership, which might involve removing the complex ‘qualification’ requirements of UK design right
• Adopting the SUDR novelty, individual character and overall impression tests in favour of “originality” and “commonplaceness”
• Adopting the SUDR test of infringement  and scrapping the “substantial part” assessment under UK design right
• Aligning spare parts provisions through harmonisation of the ‘must fit / must match’ exclusions with the repair clause
• Reconciling the visibility of parts in the ‘normal’ use of the product

It also asks whether a unified right should confer the same scope and duration of protection for all designs, regardless of their aesthetic or functional nature, or to retain some degree of distinction between the two regimes.

Unblurring of the copyright line

The distinction between ‘aesthetic’ and ‘functional’ design has been the subject of much debate in the copyright world, too. The 2024 High Court ruling in the WaterRower case (reported here) sought to clarify the correct approach to the protection of “works of artistic craftsmanship” under UK copyright, having regard to the express wording of the CDPA and its apparent conflict with retained EU law. However, recognising that the ruling may have had the opposite effect, the UKIPO asks whether “there is still confusion about items protected by copyright and design rights following recent case law”. Few (if any) IP practitioners would deny that there is.

Whilst copyright law itself is not the subject of the Consultation per se, many have observed that a meaningful reform of design law is simply not possible without a corresponding review and clarification of the scope of copyright when it comes to designs, and works of applied art in particular. Amendment might be desirable to explain, in particular, the requirements for a 3-dimensonal work to qualify as a “work of artistic craftsmanship” and to clarify the standard of “originality” under UK law. 

Our thoughts

As noted above, it is well documented that the current system does not serve the UK design industry in an optimal way. As design lawyers, we have great sympathy for design businesses who find themselves trying to untangle the various types of designs, legal tests and inconsistent terms of protection that characterise UK design law. That being said, we recognise the risk of losing valuable rights and protections purely for the sake of making the system easier to explain.

The argument against radical reform would highlight the disruption, litigation and further complexity that is likely to follow any change in the law. However, whilst Option ‘0’ (“do nothing”) is still technically on the table, it seems unlikely that the UK Government would walk away from an opportunity to streamline and improve a legal framework supporting an industry that contributes in the region of £100bn a year to the UK economy. The course is clearly set towards legal reform. The question is now whether that reform will take the form of minor adjustments, or a more radical overhaul.

On balance, we appreciate the argument for some degree of simplification through an approach which adopts the ‘best of both worlds’ from the current regime. Consolidation would recognise that, whilst they do overlap, UK design right and SUDR were created to serve different purposes and are optimised for different types of designs. Neither right is an adequate substitute for the other.

As to whether a distinction should continue to be drawn between ‘aesthetic’ and ‘functional’ design, this raises the more fundamental question of whether certain types of design innovations should be treated as more deserving of protection than others, and if so – why. This Consultation is the UK Government’s opportunity to state a clear position on this.

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.