Though in mitigation, searching for relevant design registrations covering the UK can be problematic, for several reasons, not least because of how they are classified. This can make the performing of such searching time intensive, and hence costly.

So, if you are minded to discard such due diligence due to its cost, a compromise approach is to at least instruct the UK design registry to perform such a search. This searching service is a relic of the UK design registration statute, which mandates the UK design registry (under section 23 from the Registered Design Act 1949, for those who are feeling particularly erudite) to conduct a search of the UK design register for the existence of any design registration covering the UK which relates to a particular design of product whose details are provided to the registry for searching. This service is instructed using a Design Form 21 (so-called a DF21).

The existence of this searching service by the UK design registry is unknown to many. This is evidenced by the (lack of) usage of the service in recent years, where since 2022 to the time of writing, in 2024, the service has been used less than 200 times. What makes this statistic remarkable is that the official fee for this service is a mere £24, which is at least an order of magnitude less than the cost of outsourcing such searching elsewhere. Put differently, the cost of this service by the UK design registry is by far-and-away one of the cheapest on the market.

Limitations of the service

However, there are some limitations on the output of the DF21 searching service provided by the UK design registry.

First, the output is relatively binary, in so far as the registry will only confirm whether or not they have identified any UK design registration(s) of interest, and, if so, what this design registration(s) is. For completeness though, the search does include a search for both national UK design registrations, and Hague design registrations designating the UK.

Second, the output of the search will not outline what design registrations relating to the UK have, and have not, been searched. This lack of information therefore makes it difficult to ascertain what level of similarity the UK design registry has imposed on itself in deciding what might be considered a sufficiently relevant design registration for the purpose of the search.

Noting these limitations, any such searching by the UK design registry will never equate to a more thorough, freedom-to-operate search that might otherwise be performed, where a more detailed assessment of the pertinent design registration landscape for the design being searched may be possible. But noting the relatively low official fee of the service these limitations of the service can hardly be considered unreasonable.

An insurance policy against a subsequent allegation of UK design registration infringement?

For those otherwise minded to launch a product in the UK without performing any assessment as to whether the underlying design of the product infringes an existing UK design registration, the above service by the UK design registry might at least provide some reassurance that no infringement of a UK design registration exists.

Where the service is employed, and its resultant search results do not highlight any design registration of relevance, this may also provide credibility in asserting a position of “innocent infringement”, in response to any subsequent allegation of infringement of an existing UK design registration. This may be beneficial, noting that where a position of innocent infringement can be successfully asserted this can restrict the extent of damages payable in the eventuality that the allegation of infringement is ultimately proven (under section 24B from the Registered Design Act 1949, for those seeking the relevant legal statute).

As background, innocent infringement involves asserting that at the date of an infringement of a registered design the infringer was not aware, and had no reasonable ground for supposing, that the design was, in fact, registered. So, assuming the UK design registry did not highlight this design registration of part of a previously instructed search using the DF21 searching service, arguing for such innocent infringement may be more credible.

Usage alongside registration of the design as a UK design registration

One strategy for having a design searched, as part of the above searching service, is to instruct this search shortly after any request is made to register the design as part of a UK design registration. In that respect, the official fee for registering a design as a UK design registration can be as little as £50, so the incremental added official fee of £24 in getting this design additionally searched for assessing its relevance to any existing UK design registration(s) represents excellent value for money.

At the time of writing, the UK design registry typically requires two weeks to perform a search under the above service, which is not much longer than the time taken to register any design as part of a UK design registration. If a search is requested shortly after a request is made to register the design as part of a UK design registration, the outcome of the search might then conveniently be reported not too long after the design is registered.

Summary

The DF21 design searching service provided by the UK design registry has its limitations, though given its modest official fee of £24, it nonetheless represent excellent value for money.

Certainly though, any usage of the service can never substitute for a more thorough, freedom-to-operate search that might otherwise be performed, which can invariably provide for a much better assessment of the pertinent design registration landscape for the design that is being searched.

Useful links

• Registered Designs Act 1949, Section 23: dycip.com/registered-designs-act-1949-23
• Registered Designs Act 1949, Section 24B: dycip.com/section24B1-ukda-1949
• Register a design, UK Government: dycip.com/register-design-ukgov