Goods or articles which are visually attractive catch attention of customers faster than other goods of same quality and make. Visual attraction enhances marketability of the articles. The manufactures of goods and articles to sale their products in the competitive market design their articles such that they become attractive and suit the eyes of customers. The companies are doing a lot to make their products attractive and reliable. They are expanding a lot of their revenue to design their products.
In order to be protected, the design of an article must be appeal to the eye. This means that a design is primarily of an aesthetic nature. A design of a product also has technical or functional feature, the industrial design, as a category of intellectual property law, refers only aesthetic nature of finished products and is distinct from the technical or functional aspects. It can be said that an industrial design refers only ornamental or aesthetic aspects of a product.
LETS’ CONSIDER SOME DEFINITIONS
INDUSTRIAL DESIGN; the art that deals with the design problems of manufactured objects, including problems of designing such objects with consideration for available materials and means of production, of designing packages, bottles, etc., for manufactured goods, and of graphic design for manufactured objects, packages, etc.
WIKIPEDIA: 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.
CAMBRIDGE ENGLISH; Industrial design- the process of designing the shape, features, etc. of manufactured products.
Industrial Design (ID) is the professional practice of designing products, devices, objects, and services used by millions of people around the world every day. Industrial designers typically focus on the physical appearance, functionality and manufacturability of a product, though they are often involved in far more during a development cycle.
We can say that an Industrial Design, consists of creation of shape, appearance, colour, combination of patterns, configuration of article or goods of a manufacturer. Industrial design mainly an act of ornamenting or designing a product or article such that suits with appearance to the eyes of customers. This reveals aesthetic aspects of a product. A well designed and visually attractive article will attract customers toward its self and increases marketability and sale of article.
Definition of Design in Section 2(d) in the Designs Act, 2000
(d) “design”means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, 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 or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in section 479 of the Indian Penal Code (45 of 1860) or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957 (14 of 1957);
ANALYSIS The definition makes it clear that design means the features of shape, configuration, pattern, ornament or composition of lines, colours applied to an article and not the article itself. The definition of “Design”, is applicable to an article in two dimensional or three-dimensional form or in both the forms. Thus, design consists of;
i) Three dimensional features, such as the shape of aproduct;
ii) Two-dimensional features, such as ornamentation, patterns, lines or colour of a product;or
iii) A combination of one or more such
Below mentioned are excluded from the definition of design;
i) Any mode or principle of construction;
ii) Anything which is in substance a mere mechanicaldevice;
iii) Any trade marks
iv) Any property mark as defined in section 479 of the Indian Penal Code,1860;
v) Any artistic work as defined in section2(c) of Copyright Act,
LETS’ CONSIDER SOME JUDICIAL DECISIONS;
Polymer Papers Private Limited Vs. Gurmit Singh & Others: Delhi High Court
held that industrial drawings and designs in which copyright was claimed were for purpose of manufacturing of filter machines or components and as such clearly fell within the meaning of “Design”, as defined in the Designs Act, 2000.
Microfibres Inc Vs. Girdhar & Co. & Others Delhi High Court held that the
definition of “design” has been amplified to incorporate therein composition of the line and colours as to avoid overlapping with Copyright Act, regarding definition of “Design” in respect of “Artistic Work”. The Division Bench came out with following ruling on above referred matters of difference between definition of “Artistic Work”, in Designs Act, 2000 and Copyright Act, 1957;
1. The definition of “artistic work’ has a very wide connotation as it is not circumscribed by any limitation of the work possessing any artistic Even an abstract work, such as a few lines or curves arbitrarily drawn would qualify as an artistic work. It may be two dimensional or three dimensional. The artistic work may or may not have visual appeal.
2. The rights to which a holder of an original artistic work is entitled are enumerated in Section 14(c) of the Copyright
3. Itis the exclusive right of the holder of a Copyright in an original artistic work to reproduce the work in any material For example, a drawing of an imaginary futuristic automobile, which is an original artistic work, may be reproduced in the three-dimensional material from using an element, such as a metal sheet.
4. Thedesign protection in case of registered works under the Designs Act cannot be extended to include the copyright protection to the works which were industrially produced.
5. A perusal of the Copyright Act and the Designs Act and indeed the Preamble and the Statement of Objects and Reasons of the Designs Act makes it clear that the legislative intent was to grant a higher protection to pure original artistic works such as paintings, sculptures etc. and lesser protection to design activity which is commercial in nature. The legislative intent is, thus, clear that the protection accorded to a work which is commercial in nature is lesser than and not to be equated with the protection granted to a work of pure
6. The original paintings/artistic works which may be used to industrially produce the designed article would continue to fall within the meaning of the artistic work defined under Section 2(c) of the Copyright Act, 1957 and would be entitled to the full period of copyright protection as evident from the definition of the design under Section 2(d) of the Designs Act. However, the intention of producing the artistic work is not
7. This is precisely why the legislature not only limited the protection by mandating that the copyright shall cease under the Copyright Act in a registered design but in addition, also deprived copyright protection to designs capable of being registered under the Designs Act, but not so registered, as soon as the concerned design had been applied more than 50 times by industrial process by the owner of the copyright or his
8. In the original work of art, copyright would exist and the author/holder would continue enjoying the longer protection granted underthe Copyright Act in respect of the original artistic work per se.
9. If the design is registered under the Designs Act, the Design would lose its copyright protection under the Copyright Act. If it is a design registrable under the Designs Act but has not so been registered, the Design would continue to enjoy copyright protection under the Act so long as the threshold limit of its application on an article by an industrial process for more than 50 times is reached. But once that limit is crossed, it would lose its copyright protection under the Copyright Act. This interpretation would harmonize the Copyright and the Designs Act in accordance with the legislative
MECHANICAL DEVICE; A mere mechanical or functional design is not registration. While pattern or an ornament would ordinarily be applied to an article, shape and configuration becomes article itself. Design relates to non- functional features of an article. Thus, a design which has functional attributes cannot be registered under the Designs Act, 2000. Section 2(d) of the Designs Act, 2000 provides that the protection is granted only to those designs which have an aesthetic value or otherwise appeal to the eye. There may be, however, cases the design while fulfilling the rest being appealing to the eye, is also functional.
In Fisher Stoves Vs. All Nighter Stove Works Inc: the defendants were held to be not guilty of the infringement of the plaintiff’s design, as it was a functional one since plaintiff’s advertisement emphasized the functional nature of the features.
Glaxo Smithkline Consumer Healthcare & Co. Ltd.KG Vs. Amigo Brushes Pvt. Ltd. & Anr: it was held that there could not be design/registration of the handle part only of the toothbrush and further it was also purely functional so could not be subject matter of registration.
Escort Construction Equipment Limited & Anr. Vs. Action Construction E quipment Pvt. Ltd. & Anr.: it was held that various parts of crane were made in a particular shape so as to interrelate with others mechanically. These parts of the crane were not made to appeal to the eye but solely to make crane to work or function. Most of the key components or parts unseen in the crane for which they were required had only to pass the test of being able to perform their function. These parts were to be judged by performance and not by appearance and hence not able to be registered as a “design”, under the Designs Act, 2000.
LET’S CONSIDER WHAT IS EYE APPEAL;
The eye alone is to be the judge of identity for the purpose of deciding whether a particular design has been anticipated or not by another has long been settle law.
Gammeter Vs. The Controller of Patents and Designs: it was held that the design should be protected provided it was not merely an analogous and that test of novelty is the eye of the judge which must place the two designs side by side and see whether the one for which novelty is claimed is new.
Interlego A.G. Vs. Tyco Industries Inc.: the court observed that in relation, however, to an assessment of whether a particular shape or configuration satisfies the former and positive part of definition, the fact that an important part of the very purpose of the finished article is to appeal to the eye cannot be ignored.
One starts with the expectation of eye -appeal, for part of the very purpose of the articles in to have an eye appeal. The articles should be designed such that article will make an immediate visual appeal to a child or the parent or other person buying the same for child.
LET’S US CONSIDER THE MEANING OF AN ARTICLE
Article: design is applied to an article. “Article”, if defined to mean under the act as any article of manufacturer and any substance, artificial or partly artificial and partly natural. Article also includes any part of an article capable of being made and sold seperately.
The article must be capable of being made and sold seperately in the sense that the article has a commercial identity in the market of its own and not when incorporated as a part of another article.
Marico Limited Vs. Raj Oil Mills Limited: the court observed that the phrase “Capable of being made and sold seperately “, covers the case not only that an article upon which a design article can be made but also can be sold seperately. Therefore, such article which is separate from the other parts of the goods and registered seperately as design, if intended and or desired by the proprietor of the registered article, as capable of being made and sold, is saleable in the market seperately. Therefore, it is registrable under the act.
Now this phrase has been inserted in the Act,” any part of an article capable of being made and sold seperately”.
LETS’ CONSIDER DEFINITION OF OWNER OR PROPRIETOR SECTION 2(j) THE DESIGN ACT,2000
“proprietor of a new or original design”, —
(i) where the author of the design, for good consideration, executes the work for some other person, means the person for whom the design is so executed;
(ii) where any person acquires the design or the right to apply the design to any article, either exclusively of any other person or otherwise, means, in the respect and to the extent in and to which the design or right has been so acquired, the person by whom the design or right is so acquired; and
(iii) in any other case, means the author of the design; and where the property in or the right to apply, the design has devolved from the original proprietor upon any other person, includes that other person.
The protection of industrial design is important as it encourages the creativity in the industrial and manufacturing sectors and helps in the economic development of a nation. An industrial design adds commercial value to a product by making it attractive. The manufactures are expanding a huge amount every year for research and development on designs. The protection of Industrial Design is very important same as protection of Copy Right and Trade Marks. An industrial design for a company became its intangible asset, that creates goodwill for it and hence required to be protected under law of the country.
CONCLUSION: we are living in industrial evaluation era, in which small and large entities are manufacturing and selling their products in a competitive environment. The customers are treated as valuable asset and business entities are doing a lot to attract customers towards their products. The main target of a business entity is to generate profits for its stakeholders and value addition. Customer generally choose products of a business entity on the basis of quality and standard they maintained against others. Some entities are using various marks to distinguish their products from others, these are called trademarks. But some products attract customers due to their design, colour, configuration, etc. Designs are treated an intellectual property during these days. The protection of Industrial Design is very important for development of a country.
DISCLAIMER: The entire contents of this document have been prepared on the basis of relevant provisions and as per the information existing at the time of the preparation. Although care has been taken to ensure the accuracy, completeness, and reliability of the information provided, author assume no responsibility, therefore. Users of this information are expected to refer to the relevant existing provisions of applicable Laws and take appropriate advice of consultants. The user of the information agrees that the information is not professional advice and is subject to change without notice. Author assume no responsibility for the consequences of the use of such information.
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