being too ‘subject specific’ and ‘reactive in nature’, leaving the scope of design protection in times unrealistically hard to control. The law was being too focused on individual rights, property rights were granted to ‘everyone who shall invent, design and print’ . O’Brien adds that the protections lay rather in the labour and production costs of the design , which is another characteristic of the old design law. Being compared to the pre-modern law, Bently and Sherman describe the modern IP law as being more ‘forward looking’. Such description could be contentious in the context of the current judicial development, it is questionable whether the fundamental purpose or values of design law (to incentivise innovation) is being forgotten or degraded.

In the modern society, mental labour are highly valued, design form the largest contribution to overall intangible investment in the UK economy, contributing over 1.5 per cent of Gross Domestic Product (GDP) . Hargreaves has warned the government about the economic importance of UK designs, suggesting a stronger legal protection is required to enable the design industry to grow at a healthy rate. The main argument that emerges from Magmatic is whether the ruling has failed to protect British innovator. Dids Macdonald, the CEO of Anti Copying In Design, describe the Magmatic judgement as ‘a sad day of design’ and a distortion ‘plunging design law into an abyss’ . Ashby argued that the Supreme Court has missed the opportunity to seek guidance from the CJEU for the proper interpretation regarding the absence of surface decoration in Magmatic, leaving the matter in mysteries, thereby creating more uncertainties to the scope of design protection. Compare the recent judicial development in design law to the ‘luxuriant jungle of design rights’ available in the past, it is highly worrying that this tendency being further continued. The consequences of deprivation of design protection could be disastrous.

Public accessibility

Exhibition is a way to pay attribute to good design works, the Victoria and Albert Museum was first opened in the nineteenth century, exhibiting outstanding designs to the general public, with a view to improve standard taste of design in Britain . Yet, there are potential risks that the imitator could take advantages from the exposure of designs. A design copier may incorporate the design ideas that he picked up in the exhibition, more importantly, under the current legal regime, the original designer’s right to acquire a registered designs in the EU may be jeopardised. Although the 12 months of “grace period” will then be triggered, the original designer will be prevented from registering a design, once the copyist releases the rival product in the EU market. At least, even if the copyist had registered the rival products he produced, it will hardly be recognised as a valid registered design. The only person or party that entitled to register for a design is the original designer himself, given that he was not commissioned and paid for the design work , or working under an employment contract. Otherwise the commissioner or the company thereby is able to register for the design. According to the rule set out in Woodhouse UK v Architectural Lighting , when deciding the validity of a registered design right, the mental elements should not be taken into account, even though the person genuinely have no knowledge