– Sachin Verma
Asst. Prof., Indore Institute of Law
– Pankaj Dwivedi
Asst. Prof., Indore Institute of Law
The production and development of industrial designs aim to make an impact economically, socially and culturally to make things better for the community or society as a whole. If we want to be secure that our ideas or designs won’t be stolen, these objects can be protected by copyright and trademark rights. But if we are talking about a huge number of products, an industrial design registration should be obtained for these with a term of 10 years validity period. In most cases, we can enforce a patent along with the registration of industrial design to protect the practical characteristics of a freshly made product with both functional and aesthetic aspects.
“Industrial Design (ID) is the professional service of creating and developing concepts and specifications that optimize the function, value and appearance of products and systems for the mutual benefit of both user and manufacturer.
In everyday language, an industrial design generally refers to a product’s overall form and function. An armchair is said to have a “good industrial design” when it is comfortable to sit in and we like the way it looks. For businesses, designing a product generally implies developing the product’s functional and aesthetic features taking into consideration issues such as the product’s marketability, the costs of manufacturing or the ease of transport, storage, repair and disposal.
From an intellectual property law perspective, however, an industrial design refers only to the ornamental or aesthetic aspect of a product. In other words, it refers only to the appearance of an armchair. Although the design of a product may have technical or functional features, industrial design, as a category of intellectual property law, refers only to the aesthetic nature of a finished product.1
Intellectual Property refers to creation of mind such as inventions, designs for industrial articles, literary, artistic work, symbols which are ultimately used in commerce. Intellectual Property rights allow the creators or owners to have the benefits from their works when these are exploited commercially. These rights are statutory rights governed in accordance with the provisions of corresponding legislations. Intellectual Property rights reward creativity & human endeavor which fuelthe progress of humankind. These are classified into seven categories i.e.
(1) Patent (2) Industrial Design (3) Trade Marks (4) Copyright (5) Geographical Indications (6) Lay out designs of integrated circuits (7) Protection of undisclosed information/Trade Secret according to TRIPs agreements.
Design’ means only the features of shape, configuration, pattern or ornament or composition of lines or color or combination thereof applied to any article whether two dimensional or three dimensional or in both forms, by any industrial process.2
Since the enactment of the DesignAct, 1911 considerable progress has been made in the field of science and technology. The legal system of the protection of industrial design requires to be made more efficient in order to ensure effective protection to registered design. It is also essential to promote design activity in order to promote the design element in an article of production. The Design Act, 2000, after repealing the Act of 1911 aims at the protecting the design in India and bringing the Indian law at par with International law.
ESSENTIAL FEATURES OF DESIGN
• It must be applied to the article – Adesign is something which is applied to an article and not the article itself. An article to which the design is to be applied must be something which can be delivered to the purchaser/customer as a finished article. Therefore, building and structures like a 5-star hotel or a petrol filling station cannot be considered as articles within the definition of design. On the other hand, portable/moveable structures which can be sold as finished articles may be the subject-matter for registration as design. E.g., models of building and structures, and toys etc.
• Appeal to the eye – Adesign of an article must be appeal to the eye and be capable of being judged solely by the eye. In other words, all shapes or configuration or patterns are not capable of being registered. The features should appeal to the eye and should be judged solely by the eye and not by any functional considerations. There must be a special, peculiar, distinctive, significant or striking appearance – something which catches the eye.
• Novelty and originality – A design, for the purpose of registration must be both new and original, not previously published in India. It should be substantially different from pre-existing designs applied to the class of the article. The introduction of ordinary trade variants into an old design cannot make it new or original. For E.g., color may from an element in a design, but color or coloring as such does not constitute a design, unless the change of color creates a new partition or ornament. In deciding the question of novelty or originality, the evidence of experts in the trade is admissible.
• No prior publication -In order to constitute publication, a design must be made available to the public or it is shown to be disclosed to some person without any obligation to keep it secret/confidential. It is not necessarythe design should be actually used. Generally the publication may be classified into two types; viz., (i) Publication in prior document; and (ii) Publication by prior user. If it is published already, it cannot be registered as a ‘design’ under the Act. In Kemp and company and others vs. prima plastics Ltd.3, the Bombay High Court held that a disclosure of a design by the proprietor to any other person on good faith is not deemed to be a publication of design sufficient to invalidate the copyright thereof, if the registration ids obtained subsequent to the disclosure.
PROTECTION OF INDUSTRIAL DESIGN
“A thing of beauty is a joy forever”, these golden words have a very great significance in today’s materialistic world, where the appearance of an article counts more than its utility or quality. Many people blindly choose an article, which catches their eye by the beauty in its design . The concepts of globalization & liberalization have flooded the Indian markets with large variety of products. The consumers are provided with numerous alternatives for any single product. This has made the Indian consumers more selective. Nowadays the producers have to not only proved their product’s reliability but they also have to satisfy the aesthetic appetite of the consumers. The producers spend huge capital in developing innovative designs for catching the recognition of consumers by enhancing the appearance of their products.
Design protection will play an important role in the product market, increasing the competitiveness of the manufacturer or vendor ofthe product, and enhancing quality of societal life. Hence it is necessary to protect designs so as to reward the designer’s creativity and to encourage future contributions. To this end, industrial designs are protected by legislations.
Design registration particularly makes business sense when it improves competitiveness of a business and brings in additional revenue in one or more of the following ways:
• Registration ofa design helps to prevent it from being copied and imitated by competitors, and thereby strengthen competitive position.
• Registration of a valuable design contributes to obtaining a fair return on investment made in creating and marketing the relevant product, and thereby, improves profits.
• Industrial designs are business assets that can increase the commercialvalue ofa company and its products. The more successful a design, the higher is its value to the company.
• A protected design may also be licensed (or sold) to others for a fee. By licensing it, it may be possible to enter markets, that otherwise would have been unable to service.
With the development ofeconomic globalization, industrialdesign in product branding, corporate competitiveness, the formation of overall nationalstrength increased, as well as people’s living standard improvements, play an increasingly important role, but also has been more emphasis on all aspects protection of designs.
Industrial designs as one of the Intellectual Property Rights Legal systems play an important role in the trading of consumer goods or products, and as proven in our dailylife, most people do depend on the appearance of products resulted from works of designing. We can find any products with different appearance on markets, and we will choose every single product that meets our tastes. Due to its nature, industrial design is close-linked in between form and function of an article or a product.
Unique, creative design is at the core of new product development and is an essential tool in product differentiation. Thus, the development of new products is a main force that ensures sustainability, competitiveness, and continual change for an organization.
Design is considered to be a core value for creating profit, the need for design rights has become more of an issue thus the design laws play an important role in protecting the value of the designs and in maintaining the core capabilities of the design creators.
To help develop and promote the design industry, each nation has its own system and laws to protect an Industrial design rights are the one of the important part of the intellectual property rights which confers the rights ofexclusivity to the visualdesigns of objects which are generally not popular utilitarian. It safeguards the appearance, style, design of the industrial object such as spare parts, textiles, furniture.
Industrial design rights play a critical role in ensuring that the global commercial activities continue smoothly with fewer hiccups by encouraging sincere efforts of the design teams and discouraging plagiarism in the commercial world.
Industrial design is a combination of applied art and applied science, whereby the aesthetics, ergonomics and usability of products may be improved for marketability and production. The role of an industrial designer is to create and execute design solutions towards problems of form, usability, physical ergonomics, marketing, brand development and sales.
Design is a creative activity whose aim is to establish the multi-faceted qualities of objects, processes, services and their systems in whole life-cycles. Therefore, design is the central factor of innovative humanization of technologies and the crucial factor ofcultural and economic exchanged secure intellectual property rights.