Industrial design rights
Encyclopedia
An industrial design right is an intellectual property
right that protects the visual design of objects that are not purely utilitarian. An industrial design
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 Hague Agreement Concerning the International Deposit of Industrial Designs
, a WIPO
-administered treaty, a procedure for an international registration exists. 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
in 1787 with the Designing and Printing of Linen Act and have expanded from there.
An industrial design right can be viewed as a sui generis
intellectual property right similar to copyright
.
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.
relating to protection of design and to comply with the articles 25 and 26 of TRIPS agreement. The new act, (earlier Patent and Design Act, 1911 was repealed by this act) now defines "design" to mean only the features of shape, configuration, pattern, ornament, or composition of lines or colours applied to any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.
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 out side 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.
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.
s are available which provide a unitary right covering the European Community. 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.
ese 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.
s last fourteen years from the date of grant 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
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 cannot be used to prevent others from competing on the merits.
of textile designs
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
right that protects the visual design of objects that are not purely utilitarian. An industrial design
Industrial design
Industrial design is the use of a combination of applied art and applied science to improve the aesthetics, ergonomics, and usability of a product, but it may also be used to improve the product's marketability and production...
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 Hague Agreement Concerning the International Deposit of Industrial Designs
Hague Agreement Concerning the International Deposit of Industrial Designs
The Hague Agreement Concerning the International Deposit of Industrial Designs, also known as the Hague system provides a mechanism for registering an industrial design in several countries by means of a single application, filed in one language, with one set of fees...
, a WIPO
World Intellectual Property Organization
The World Intellectual Property Organization is one of the 17 specialized agencies of the United Nations. WIPO was created in 1967 "to encourage creative activity, to promote the protection of intellectual property throughout the world"....
-administered treaty, a procedure for an international registration exists. 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
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
in 1787 with the Designing and Printing of Linen Act and have expanded from there.
An industrial design right can be viewed as a sui generis
Sui generis
Sui generis is a Latin expression, literally meaning of its own kind/genus or unique in its characteristics. The expression is often used in analytic philosophy to indicate an idea, an entity, or a reality which cannot be included in a wider concept....
intellectual property right similar to copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
.
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 lawLaw
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
relating to protection of design and to comply with the articles 25 and 26 of TRIPS agreement. The new act, (earlier Patent and Design Act, 1911 was repealed 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 out side 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
Canada's industrial design act affords ten years of protection to industrial designs that are registered; there is no protection if the design is not registered. The Industrial Design Act (R.S., c. I-8) 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.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.
Europe
Registered and unregistered Community designCommunity design
A Community design is a unitary industrial design right that covers the European Union. It has both unregistered and registered forms. The unregistered Community design came into effect on 6 March 2002 and the registered Community design was available from 1 April 2003.-Legal basis:Council...
s are available which provide a unitary right covering the European Community. 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
In addition to the design protection available under Community designs, UK law provides its own national registered design right 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.Japan
Article 1 of the JapanJapan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
ese 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 patentDesign patent
In the United States, a design patent is a patent granted on the ornamental design of a functional item. Design patents are a type of industrial design right. Ornamental designs of jewelry, furniture, beverage containers and computer icons are examples of objects that are covered by design...
s last fourteen years from the date of grant 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
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
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 cannot be used to prevent others from competing on the merits.
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.See also
- Design patentDesign patentIn the United States, a design patent is a patent granted on the ornamental design of a functional item. Design patents are a type of industrial design right. Ornamental designs of jewelry, furniture, beverage containers and computer icons are examples of objects that are covered by design...
(US patent law) - Industrial design rights in the European UnionIndustrial design rights in the European UnionIndustrial design rights in the European Union are provided at both the Community level by virtue of the Community design and at the national level under individual national laws.- Eligible designs :...
- GeschmacksmusterGeschmacksmusterUnder German law, the Geschmacksmuster is a form of intellectual property that extends industrial design rights over the visual design of objects that is not purely utilitarian...
(German design law) - Open designOpen designOpen design is the development of physical products, machines and systems through use of publicly shared design information. The process is generally facilitated by the Internet and often performed without monetary compensation...
- Utility modelUtility modelA utility model is an intellectual property right to protect inventions. This right is available in a number of national statutes, as described below...
External links
- Information about industrial design rights on the Kenya Industrial Property Institute website.
- Information about industrial design rights on the IPAustralia website.
- Industrial Design Act (Canada) ( R.S.C. 1985, c. I-9 )
- Information about industrial design rights on the UK Patent Office web site
- International 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