Commentary Part 1: DESIGNS Section 7: UK Registered designs – Right of prior use
27.This section introduces a limited right to continue to use a registered design where a third party acts in good faith in the use of a design that is subsequently registered by another. This will allow third parties to continue using the design according to preparations they have already made, without fear of someone being able to stop them at a later date and jeopardising their investment. It harmonises the RDA with the EU Regulation, which contains an identical measure on a right of prior use.
28.The aim of a right of prior use is to provide an entitlement to limited exploitation. New section 7B(1) ensures that the protection for the third party only applies to the use that they have already made (or prepared to make) of the design; and new section 7B(5) ensures that there is no right, for example, to sell to another the right to continue to use the design unless certain conditions are met.