An industrial design right is an
intellectual property
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, cop ...
right that protects the visual design of objects that are purely utilitarian. An
industrial design
Industrial design is a process of design applied to physical Product (business), products that are to be manufactured by mass production. It is the creative act of determining and defining a product's form and features, which takes place in advan ...
consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft.
Under the
, a
WIPO
The World Intellectual Property Organization (WIPO; french: link=no, Organisation mondiale de la propriété intellectuelle (OMPI)) is one of the 15 specialized agencies of the United Nations (UN). Pursuant to the 1967 Convention Establishin ...
-administered treaty, a procedure for an international registration exists. To qualify for registration, the national laws of most member states of WIPO require the design to be novel. An applicant can file for a single international deposit with WIPO or with the national office in a country party to the treaty. The design will then be protected in as many member countries of the treaty as desired. Design rights started in the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and North ...
in 1787 with the Designing and Printing of Linen Act and have expanded from there.
Registering for an industrial design right is related to granting a
patent
A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A p ...
.
Law making
Kenya
According to industrial property Act 2001, an industrial design is defined as "any composition of lines or colours or any three-dimensional form whether or not associated with lines or colours, provided that such composition or form gives a special appearance to a product of industry or handicraft and can serve as pattern for a product of industry or handicraft" .
An industrial design is registrable if it is new. An industrial design is deemed to be new if it has not been disclosed to the public, anywhere in the world, by publication in tangible form or, in Kenya by use or in any other way, prior to the filing date or, where applicable, the priority date of the application for registration. However a disclosure of the industrial design is not taken into consideration if it occurred not earlier than twelve months before the filing date or, where applicable, the priority date of the application and if it was by reason or in consequence of acts committed by the applicant or his predecessor in title; or an evident abuse committed by a third party in relation to the applicant or his predecessor in title.
India
India's Design Act, 2000 was enacted to consolidate and amend the
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
relating to protection of design and to comply with the articles 25 and 26 of Trade-Related Aspects of Intellectual Property Rights
TRIPS
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization (WTO). It establishes minimum standards for the regulation by nat ...
agreement. The new act, (earlier Patent and Design Act, 1911 was
repealed
A repeal (O.F. ''rapel'', modern ''rappel'', from ''rapeler'', ''rappeler'', revoke, ''re'' and ''appeler'', appeal) is the removal or reversal of a law. There are two basic types of repeal; a repeal with a re-enactment is used to replace the law ...
by this act) now defines "design" to mean only the features of shape, configuration, pattern, ornament, or composition of lines or colours applied to any article, whether in two- or three-dimensional, or in both forms, by any industrial process or means, whether manual or mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction.
Indonesia
In Indonesia the protection of the Right to Industrial Design shall be granted for 10 (ten) years commencing from the filing date and there is not any renewal or annuity after the given period.
* Industrial Designs that are Granted Protection
1. The Right to Industrial Design shall be granted for an Industrial Design that is novel/new
2. An Industrial Design shall be deemed new if on the filing date, such Industrial Design is not the same as any previous disclosure.
3. The previous disclosure as referred to in point 2 shall be one which before :
a. The filing date or
b. The Priority Date, if the applicant is filed with priority right.
c. Has been announced or used in Indonesia or outside Indonesia.
An industrial design shall not be deemed to have been announced if within the period of 6 (six) months at the latest before the filing date, such industrial design
a. Has been displayed in a national or international exhibition in Indonesia or overseas that is official or deemed to be official; or,
b. Has been used in Indonesia by the designer in an experiment for the purposes of education, research or development.
Canada
Canadian law affords ten years of protection to industrial designs that are registered; there is no protection for unregistered designs. The ''Industrial Design Act'' defines "design" or "industrial design" to mean "features of shape, configuration, pattern or ornament and any combination of those features that, in a finished article, appeal to and are judged solely by the eye." The design must also be original: in 2012, the
Patent Appeal Board
A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A ...
rejected a design for a
trash can
A waste container, also known as a dustbin, garbage can, and trash can is a type of container that is usually made out of metal or plastic. The words "rubbish", "basket" and "bin" are more common in British English usage; "trash" and "can" a ...
, and gave guidance as to what the Act requires:
:* The degree of originality required to register an original design is greater than that laid down by Canadian copyright legislation, but less than that required to register a patent.
:* The articles being compared should not be examined side by side, but separate so that imperfect recollection comes into play.
:* One is to look at the design as a whole.
:* Any change must be substantial. It must not be trivial or infinitesimal.
During the existence of an exclusive right, no person can "make, import for the purpose of trade or business, or sell, rent, or offer or expose for sale or rent, any article in respect of which the design is registered." The rule also applies to kits and substantial differences are in reference to previously published designs.
Registering an industrial design in Canada may be appropriate for a variety of articles such as consumer products, vehicles, sports equipment, packaging, etc., having an original aesthetic appearance, and may even be used to protect new technologies such as electronic icons. Industrial designs can also serve to complement other forms of intellectual property rights such as patents and trade-marks.
The Canadian courts see infrequent litigation concerning industrial designs the first case in almost two decades took place in 2012 between
Bodum
Bodum, Inc. is a Danish-Swiss kitchenware manufacturer headquartered in Triengen, Switzerland. Founded in Copenhagen, Denmark, in 1944 by Peter Bodum, the company was moved to Switzerland in 1978 by his son, Jørgen, who continued to run the c ...
and
Trudeau Corporation concerning visual features of double wall drinking glasses.
It is possible for a registered design to also receive protection under Canadian copyright or trademark law:
:* a "useful article" (ie, one with a utilitarian function) will receive copyright protection where it is reproduced in a quantity of fifty or less, but that limitation does not apply with respect to:
:** a graphic or photographic representation that is applied to the face of an article
:** a trade-mark or a representation thereof or a label
:** material that has a woven or knitted pattern or that is suitable for piece goods or surface coverings or for making wearing apparel
:** a representation of a real or fictitious being, event or place that is applied to an article as a feature of shape, configuration, pattern or ornament
:* where a registered design has become publicly identifiable with the product, it may be eligible for registration as a "distinguishing guise" under trademark law, but such registration cannot be used to limit the development of any art or industry
European Union
Registered and unregistered
community designs are available which provide a unitary right covering the
European Community
The European Economic Community (EEC) was a regional organization created by the Treaty of Rome of 1957,Today the largely rewritten treaty continues in force as the ''Treaty on the functioning of the European Union'', as renamed by the Lisbo ...
. Protection for a registered community design is for up to 25 years, subject to the payment of renewal fees every five years. The unregistered community design lasts for three years after a design is made available to the public and infringement only occurs if the protected design has been copied.
United Kingdom
Legislation given in Britain during the years 1787 to 1839 protected designs for textiles. The Copyright of Design Act passed in 1842 allowed other material designs, such as those for metal and earthenware objects, to be registered with a diamond mark to indicate the date of registration.
In addition to the design protection available under community designs, UK law provides its own national registered
design right
An industrial design right is an intellectual property right that protects the visual design of objects that are purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or c ...
(
Registered Designs Act 1949
The Registered Designs, Act, 1949 (12, 13 and 14 Geo. 6 c. 88) is an act in the United Kingdom concerning copyright and related rights, industrial designs, patents, protection of undisclosed information. The purpose of the act was to consolidate ...
, later amended by
Copyright, Designs and Patents Act 1988
The Copyright, Designs and Patents Act 1988c 48, also known as the CDPA, is an Act of the Parliament of the United Kingdom that received Royal Assent on 15 November 1988. It reformulates almost completely the statutory basis of copyright law ( ...
) and an unregistered design right. The unregistered right, which exists automatically if the requirements are met, can last for up to 15 years. The registered design right can last up to 25 years subject to the payment of maintenance fees. The topography of semi-conductor circuits are also covered by
integrated circuit layout design protection
Layout designs (topographies) of integrated circuits are a field in the protection of intellectual property.
In United States intellectual property law, a "mask work" is a two or three-dimensional layout or topography of an integrated circuit ...
, a form of protection which lasts 10 years.
Japan
Article 1 of the Japanese Design Law states: "This law was designed to protect and utilize designs and to encourage creation of designs in order to contribute to industrial development". The protection period in Japan is 20 years from the day of registration.
United States
U.S.
design patent
In the United States, a design patent is a form of legal protection granted to the ornamental design of an article of manufacture. Design patents are a type of industrial design right. Ornamental designs of jewelry, furniture, beverage containers ...
s last fifteen years from the date of grant if filed on or after May 13, 2015 (fourteen years if filed before May 13, 2015) and cover the ornamental aspects of utilitarian objects. Objects that lack a use beyond that conferred by their appearance or the information they convey, may be covered by copyright—a form of
intellectual property
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, cop ...
of much longer duration that exists as soon as a qualifying work is created. In some circumstances, rights may also be acquired in trade dress, but trade dress protection is akin to trademark rights and requires that the design have source significance or "secondary meaning." It is useful only to prevent source misrepresentations; trade dress protection.
Australia
In Australia, design patent registration lasts for 5 years, with an option to be extended once for an additional 5 years. For the patent to be granted, a formalities exam is needed. If infringement action is to be taken, the design needs to become certified which involves a substantive examination.
Duration of design rights
Depending on the jurisdiction registered design rights have a duration between 15 and 50 years.
[This is the range of contracting parties of th]
WIPO Hague system
/ref> Members of the WIPO Hague system have to publish their maximum term of protection for design rights. These terms are presented in the table below. Some of the jurisdiction below are unions or collaborative office for design registration like the African Intellectual Property Organization
African or Africans may refer to:
* Anything from or pertaining to the continent of Africa:
** People who are native to Africa, descendants of natives of Africa, or individuals who trace their ancestry to indigenous inhabitants of Africa
*** Ethn ...
, the European Union
The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been des ...
and the Benelux
The Benelux Union ( nl, Benelux Unie; french: Union Benelux; lb, Benelux-Unioun), also known as simply Benelux, is a politico-economic union and formal international intergovernmental cooperation of three neighboring states in western Europe: B ...
.
Bibliography
* Brian W. Gray & Effie Bouzalas, editors, ''Industrial Design Rights: An International Perspective'' (Kluwer Law International: The Hague, 2001)
See also
* Design patent
In the United States, a design patent is a form of legal protection granted to the ornamental design of an article of manufacture. Design patents are a type of industrial design right. Ornamental designs of jewelry, furniture, beverage containers ...
(US patent law)
* Geschmacksmuster Under German law, the registered design (German: ''eingetragenes Design''), formerly called ''Geschmacksmuster'' ("aesthetic model"), is a form of intellectual property that extends industrial design rights over the visual design of objects that is ...
(German design law)
* Industrial design rights in the European Union
Industrial design rights in the European Union are provided at both the Union level by virtue of the Community design and at the national level under individual national laws.
Eligible designs
A design is defined as "the appearance of the whol ...
* Open-design movement
The open-design movement involves the development of physical products, machines and systems through use of publicly shared design information. This includes the making of both free and open-source software (FOSS) as well as open-source hardw ...
* Utility model
A utility model is a patent-like intellectual property right to protect inventions. This type of right is available in many countries but, notably, not in the United States, United Kingdom or Canada. Although a utility model is similar to a patent ...
References
External links
Information about industrial design rights on the Kenya Industrial Property Institute website.
Information about industrial design rights on the IPAustralia website.
* ttp://wipo.int/designs/en/ International Designs on the WIPO web site
Hague System for the International Registration of Industrial Designs on the WIPO web site
www.handsoffmydesign.com e-Learning about European Union Design Protection
Ebook on legal protection * [http://www.thehagueuniversity.com/ www.thehagueuniversity.com Industrial Design Engineering (IDE) – full time] of textile designs
{{Design
*
Intellectual property law