Book Review: Russell-Clarke and Howe on Industrial Designs

Gold on green...
easier to read in real life

The latest edition (the 9th) of Russell-Clarke and Howe is out.  This is the go-to practitioner's text for design law in the UK.  The result of extensive research and updating by Martin Howe QC, James St Ville and Ashton Chantrielle - this is the definitive guide to the protection of industrial designs in the UK.

The book covers everything from the history behind design rights, including insights into why graphic symbols and typefaces are included in the definition of a product due to an "anomaly of history". Basically, back in the day, they were made using physical shapes (e.g. cut into a print screen) and have remained protected even as technology has moved us into computer development being the norm (2-033).

As well as giving a comprehensive overview of the past and current status of industrial designs, the updated edition gives various nods to the future, including the observation that, whilst stills from films can be protected as photographs, a "generated 'virtual reality' image, however real it might look, would not count as a photograph" (although it would be protected as a graphic work) (5-013).

Chapter 11 compares the registered designs laws of countries whose registered design law is historically linked to the UK.  For example, in Australia it is possible to file a statement of newness and distinctiveness with a registered design (11-009).  The identified features are given particular attention when assessing the design as a whole.  The registration system is also differentiated by offering registration of designs without examination by the registry (as in the EU), but if the design's owner wishes to assert the design against the third party, it must first be examined by the registry.  Indeed it is open to anyone to request examination of an Australian registered design at any time (11-012).

The post Brexit passport(?) designed by Scottish
graphic designer Ian MacFarlane
for Dezeen's unofficial competition

Designs are one of the areas of intellectual property which will be particularly affected by Brexit.  Although the book was written before the Brexit vote, there are obvious additions which were made after the 23 June vote.

The preface puts a positive spin on Brexit and makes some interesting predictions about the future, including bold statements such as "there seems little doubt that [EEA exhaustion will be replaced with] global exhaustion rather than UK-only exhaustion". Given the inward looking motivations behind Brexit, a move to UK only exhaustion is perhaps more likely, at least to begin with, but time will tell.

The preface also suggests that because "Community unregistered [design] right largely duplicates the alternative unregistered forms of protection available under UK law under UK unregistered design right and artistic copyright, so there seems little purpose in recreating it under UK domestic law after [Br]exit". Although there is some cross over, the loss of Community unregistered design right will lead to significant gaps in IP protection for many industries.  The fashion industry is particularly affected by imminent loss of protection.

Fashion regularly produces new three-dimensional creations with a fairly short shelf life - perfect for the three-year window for Community unregistered designs.  Whilst copyright and UK unregistered design right can offer some equivalent protection for original shapes and configurations and surface decoration, many aspects (if you will) of fashion will be no longer protectable.

Even if you do not agree with some of the crystal ball gazing, there is no doubt that this a thorough guide to industrial designs in the UK and indeed the definitive practitioner's text.  More details available from the publisher Sweet & Maxwell's website here.

Rupture factor - low.
Weight - far too heavy to read on the train (best kept in the office)!