Unregistered design rights are a vital tool for protecting creative output in fast-paced industries such as fashion, luxury, and consumer goods. However, the scope and enforceability of these rights differ between the UK and the EU. The recent decision in Edwards v Boohoo.com UK Ltd [2025] EWHC 805 (IPEC) offers valuable insight into how UK courts interpret unregistered design rights and the nuances of the UK system.  

UK unregistered design rights: a narrower scope

UK unregistered design rights (UKUDR) protect the shape and configuration of the whole or part of an article. Crucially, this protection does not extend to surface ornamentation, nor can it be applied selectively to aspects of a design — the design must be considered as a whole. This makes UKUDR particularly suited to 3D structural features rather than decorative or stylistic elements.

To invalidate a UKUDR, a defendant must provide multiple examples of prior art to demonstrate that the design is commonplace. For infringement, it is not enough that two designs are similar — the claimant must show that the defendant copied the design and used it as the basis for their own.

Edwards v Boohoo

In Edwards v Boohoo, independent designer Sonia Edwards brought claims against several Boohoo group companies for infringement of her unregistered design rights in five clothing designs. The court dismissed all claims, offering several key insights:

• Design documentation: UKUDR can arise either when a design is first recorded in a design document or when an article is first made to a design (per section 216 of the Copyright, Designs and Patents Act 1988). However, in instances of the latter, designs are often far more generally described than if recorded precisely in documentation, making them more vulnerable. Generalised concepts are more likely to resemble existing designs, and without specific dimensions or features, it is harder to prove copying.
• Expression vs idea: UK design law protects the expression of ideas, not the ideas themselves. The more abstract or generalised a design description, the closer it veers toward an unprotectable idea.
• Wearer-dependent features: Features that vary depending on the wearer — such as sleeve length defined as “past the wrist” — are not protectable. Design rights must be based on objective, fixed features.
• Visible features only: Only features visible in the finished article are protectable. Concealed elements like hidden zips or waistbands are excluded.

UKUDR vs EU UDR: key differences

EU UDR offers broader protection, particularly for 2D designs and decorative elements, and is easier to enforce due to the absence of a copying requirement.

UK supplementary unregistered design right (SUD)

Following Brexit, the UK introduced the Supplementary Unregistered Design Right (SUD) to replace the Unregistered Community Design within the UK. SUD mirrors the EU system in many respects:

• Protects 2D and 3D appearance, including ornamentation.
• Arises automatically on first disclosure of the design in the UK.
• Lasts for 3 years from that disclosure.
• Requires proof of copying for enforcement.

Importantly, UKUDR and SUD can coexist, offering layered protection for qualifying designs. However, designers must be strategic: first disclosure in the UK triggers SUD, while first disclosure in the EU triggers EU UDR. Disclosure in one jurisdiction may invalidate novelty in the other.

Practical implications when considering design rights 

Unregistered design rights remain a valuable tool, but their scope and enforceability vary significantly between the UK and EU. 

The decision in Edwards v Boohoo underscores the complexities of relying on unregistered design rights in the UK, particularly in fast-paced sectors like fashion and luxury. The introduction of SUD helps bridge the gap, but brands must now navigate a fragmented legal landscape. Encouragingly, the UK government is currently undertaking a major review of its design framework aimed at simplifying the multi-layered system of rights and making it more accessible. If implemented, these reforms could improve legal certainty and enforcement options for unregistered designs in the future. 

Strategic planning of first disclosure, robust design documentation, and proactive registration of rights in both the UK and EU are key to securing and enforcing design rights across borders.