Commentary Part 1: DESIGNS Section 3: Qualification criteria for unregistered designs
15.It is important that there is some control over who is able to claim unregistered design right; if there was not, designers in countries around the world would gain this protection for their original designs with no reciprocal protection for UK designers. This potential inequity is dealt with in the CDPA by the concept of “qualification”.
16.The amendments made to sections 217 to 220 of the CDPA by section 3 are intended to maintain this principle, by simplifying and expanding the concept so that those who are based in and are economically active in the EU – and in those countries to which qualification has been extended by Order (see the countries listed in S.I. 1989/1294) – may qualify.
17.Subsection (1) removes the definition of “qualifying individual” and amends the definition of “qualifying person”, and subsection (4) amends “qualification by first marketing”. Whether a design qualifies for protection because of the circumstances in which articles made to the design were first put on sale (first marketed) will now depend on the country in which those sales took place, as well as the person who did the marketing having the status of a “qualifying person” (see paragraph 18 below). It will no longer be a requirement that that person has exclusive authorisation to market the articles in the UK.
18.Subsections (2), (3) and (5) make sure that the amendments made by subsection (1) above are implemented consistently by removing references elsewhere in the CDPA to “qualifying individual”. “Qualification” is instead now centred on a “qualifying person”, which is defined according to where that person resides or where a business is legally formed and carries on its business activities (the “qualifying country”). The definition of “qualifying country” will not be altered.
19.Subsection (3) also removes the reference in section 218 of the CDPA to computer-generated designs. This reference is no longer considered necessary.