Industrial design [compatibility mode]

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Industrial design [compatibility mode]

  1. 1. Industrial designCompiled by A Srinivasa Rao
  2. 2. INDUSTRIAL DESIGN• Protected under the Designs Act, 2000• Protects external shape, configuration, surface pattern or ornamentation of an industrially reproduced article• New and novel• Judged solely by the eye• Non functional
  3. 3. NEW AND NOVEL• Novel”: Means that it must originate from the creator• “New”: Not identical to a previous design• Pattern made up of old features but resulting combination with strikingly different appearance can be novel• Distinguishable from known designs or combination of known designs• But over the years, the test has become NEW AND NOVEL
  4. 4. SurfacePatternShape ClipDesignSurfacePattern
  5. 5. WHY REGISTER YOUR DESIGN?• Statutory right – accrues only on registration – territorial• Right to prevent others from producing, importing, selling or distributing products having an identical appearance or a fraudulent or obvious imitation• Monopoly Period of 10 years- extendable by 5• Gives you a Unique Selling Point (USP)• Is an asset & can be licensed
  6. 6. DESIGNS CAN BE 2D OR 3D OR A COMBINATION •Surface pattern (2D pattern, composition of lines, colours) •Cut of the garment (3D features of shape, configuration)
  7. 7. DESIGN & FUNCTIONALITY•The intent of the Designs Act is toprotect shapes & not functions•Designs with functional features•If design is solely dictated byfunction, it will not be registrable
  8. 8. THE DEGREE OF NOVELTY REQUIRED •“New or original” does not simply mean different. Infact it should be new and original. •A trade variant of an old design does not make it novel •Substantial novelty requiredLe May v. Welch: “It cannot be said thatthere is a new design every time a coat orwaistcoat is made with a different slope ordifferent number of buttons…to hold thatwould be to paralyse industry.”
  9. 9. LIMITATIONS OF PROTECTION OFFERED BY DESIGNS LAW• A design needs to be registered for any kind of rights to be claimed over it – it may not be feasible to register every design that is created by designers• A design right cannot be claimed over a design that has been published/disclosed to the public• A design right will only be granted on the fulfilment of various criteria like “novelty”, eye appeal and non-functionality
  10. 10. ENFORCEMENT• Identical design or any fraudulent and obvious imitation;• Import for sale• Publishing or exposing the article which is known to be pirated• Injunction and damages
  11. 11. SECTION 15(2), COPYRIGHT ACT, 1957• Copyright does not subsist in design registered under the Designs Act• Design capable of being registered, but which has not been so registered enjoys copyright protection• Copyright shall cease as soon as any article to which the design has been applied more than FIFTY TIMES by an industrial process
  12. 12. THE COPYRIGHT/DESIGN OVERLAP• Fashion design lies at the cusp between “creativity” and “industrial manufacture”• Great design has the quality of transforming “wearable apparel” into “wearable art”• Thus, the distinction made by law between “purely artistic works” and works that have been commercialised can be problematic in many cases• There will be works that are both protectible under copyright law as well as under designs law• Indian law has tried to resolve this by the provision of Section 15(2), Copyright Act, 1957
  13. 13. Copyright & Designs Law• Designs that are not commercialised (i.e., not produced more than 50 times), enjoy full copyright protection even if not registered as a design• It may be argued that a design that has been commericalised, may be capable of protection under Copyright Act on the basis of the underlying artistic works (i.e., the sketches, engravings, prototypes, etc.) though Section 15 (2) remains a bar
  14. 14. Copyright & Designs Law• Important to maintain documentation and records at every stage of product design and development as this may help in claiming protection for a design under the Copyright Act• If you think of getting into mass production of a unique design, file a design application as that would provide you stronger protection & complete monopoly
  15. 15. DESIGN Vs. COPYRIGHT DESIGN COPYRIGHTNeed to register to Subsists inherently claim protection Has to be “NEW” No requirement for noveltyMaximum 15 years Life of author + 60 years Only in respect of Is not goods specificgoods registered for
  16. 16. THE DESIGN DEVELOPMENT PROCESS• Hi-fashion furniture/metal ware: 2 D drawings Prototype 3 D model Silver prototype Final 2 D drawing• Apparels: Sketch Dress-making pattern Prototype/sample garments Finished garment
  17. 17. Successful copyright infringement claims Ritu Kumar’s cases Ritika Limited v.Ashwani Kumar Ritika Limited v. NinaTalukdar Original Original Ritika Limited v. SajidMobin Copy Copy
  18. 18. YSL v. Ralph Lauren• YSL was awarded damages for Ralph Lauren’s infringement of the design rights in YSL’s design of its tuxedo dress
  19. 19. Example of infringement of registered design • Birkin v. Pratt • Lace pattern was held to have been infringed
  20. 20. INDIAN LANDMARK DECISIONS• Microfibres Case [2006(32) PTC 157] – Upholstery designs – Intention – Not Artistic work – Design registration – More than 50 copies – No injunction
  21. 21. • Tarun Tahiliani Case [Case No. 183 of 2007] – Haute Couture; – Diffusion; – Pret-a-porter – Accessories – Not mass production – Distinguished Microfibres – Injunction granted
  22. 22. Wal-Mart v. SamaraExtension of Trade dress protection to the Fashion
  23. 23. What to do when licensing a design• A registered design can be licensed to exploit markets or commercialise it on a scale beyond the resources of the author• Essential to specify in the license- the term, territory, amount of royalty & type of products for which design can be used by licensee
  24. 24. Thank you

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