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FAQ - DESIGNS


1. Emergence of Industrial Designs:  

The Industrial Revolution of the 1700s to 1800s gave rise to the Industrial Design Evolution in the early 1900s during which the term Industrial Design Evolution was used for the 1st time, attributed to Joseph Claude Sinel, a New Zealander. The Great Depression of the 1950s further boosted the fledgling Industrial Design Paradigm to gain the massive clout known today owing to the refocus businesses had to give their products so as to make methods, processes, men and material that much more cost effective, resourceful and attractive to uplift sentiments all around.  

Thus Industrial Design and Industrial Designers bridged the gap between artists and engineers which gave rise to branding, marketing, mass media outreach and commerce as prevalent today.  Industrial Designs thus moved from heavy machinery with a factory approach to a more refined and genteel appeal catering to the needs of the gentry by tackling living, working and fashion needs amongst others.  Now, Industrial Designs are expected to incorporate the green movement in being environmental friendly by upscaling, recycling, refurbishing and repurposing goods and products so as to conserve and save planet earth.  

Mapping Design, Applied Art and Industrial Design:  

The word ‘Design’ at the first instance brings to fore decorations, patterns et.al. with the adjectives ‘lovely, beautiful, magnificent’ etc., and is usually associated with Art and Craft as also Handicraft such as paintings, sculptures, embroidery, fashion et. al. bringing them under the realm of fine arts with the intended purpose of  bringing joy and aesthetic appreciation to  the audience.    

‘Applied Art’ takes the concept of Design further by conveying the meaning: any type of art done with a practical application; the application of design and aesthetics to objects of function and everyday use such as fashion design, graphic design, interior design, and so on with the intention of beautification of the same.  

‘Industrial Design’ is the merging of Applied Art and Design wherein, ‘Form and Function’ come together to combine a practical yet aesthetic looking product coveted by an eager audience. Creativity and Technology together shape the world of commerce and consumerism, the likes of automobiles, kitchen appliances and so forth.  

Though it would seem that there is a melding of all of the above concepts leading to overbearing commonalities, it is very important to understand the intertwining amongst these concepts and untwine them legally to arrive at a proper understanding so as to delineate the streams of law, engineering, technology and fine arts in the mélange. Further, in the same spectrum these streams would give rise to protection as under:  

Legal Protection – Intellectual Property Law, specifically Industrial Design Law.

Engineering and Technology – Intellectual Property Law, specifically Patent Law.

Fine Arts – Intellectual Property Law, specifically Copyright Law.  

Synopsis:  The definition of ‘Artistic Work’ has a very wide connotation as it is not limited or restricted by any limitation of the work possessing any artistic quality.  For instance, even an abstract work such as a few lines or curves drawn casually, on a personal whim or fancy would qualify as an artistic work. Hence, artistic work may or may not have visual appeal.    

Unlike Copyright with its modest requirements of originality/novelty, barriers to design protection are quite formidable. This is because of the novelty requirements.

An industrial design must be able to produce a new and hitherto unseen visual impression generally measured in relation to an ordinary observer.  Such an industrial design must also be able to create an aesthetic impact. Thus, Industrial Designs are meant to convey Aesthetics, Ergonomics, Exegetics  which would then play a pivotal role in drawing customers to the products therein as put forth by R. Lowey:

‘Between two products equal in price, function and quality, the better looking will outsell the other’.  

2. Difference between Copyright and Industrial Designs:  

Even a design that is merely different, quirky, absurd, funny or different may have advantages as it would appeal to audiences by way of its novelty, uniqueness and may add to ‘diversity’ factor to the design repertoire.  Therefore unlike artistic works which once created are left open to the viewers' interpretation, industrial designs are meant to convey a particular ‘message’ by spurring the intended audience to align themselves with the thought put out therein.  

This differentiation forms the core between artistic designs which are ‘subjective’ to the viewer’s aesthetics whereas the industrial designs are meant to be ‘objective’ from the viewer’s point of view, that is the message put out would have to be obvious. Therefore, good art Inspires whereas, good design Aspires the intended buyer. Copyright is therefore granted to artistic works and industrial design protection through a sui-generis system of the Industrial Design Law.  

Varying Approaches to Copyright and Industrial Design:  

So where does Copyright End and Design Begin? The inherent duality of Industrial Designs as manifested in functional and aesthetic aspects leads to the following approaches or regimes:-  

Cumulative Protection:  based on the ‘Unity of Art’ concept which propounds that an artistic expression should not be disqualified merely because it is fixed or epitomized in a utilitarian article. This approach incorporates both Sui-Generis design regime where special protection to industrial designs are given along with Copyright protection. Under the cumulative protection system, copyright protection and industrial design protection are made to operate simultaneously yet independently from each other. This practice was first put to use in France.  

Separability Approach: expounds that industrial designs need to be protected / patented only under the ‘sui generis’ system and as a principle not to be integrated with works of art protected by copyright. Hence, the overall presentation, configuration shape, aestheticity in industrial and consumer products are not to be protected only  by copyright but also by industrial designs or patents as the case may be. The design must be such that viewer must be able to easily demarcate and dissociate the design from the product in question. This practice was first helmed the USA and is followed by many countries for ease of implementation of copyright, patents, industrial designs.  

Partial Overlap Approach: provides for copyright protection to overlap with design which can also be considered as a work of art, this approach propounds the possibility of granting copyright protection to industrial designs in utilitarian products.  Countries approaching this method such as Germany, Nordic Countries, Denmark, Finland, Norway, Sweden, Switzerland etc., have established conditions for this overlap which command high strictness. Hence designs not having a marked artistic character are expressly left outside the scope of protection by copyright laws.  

Conclusion:  It is thus seen that rather than water tight compartments in intellectual property law, a medley or amalgamation of aesthetics, form, function and utilitarianism is the driving force which together has brought about a revolutionary thought process in shaping the world of today.  Hence, Industrial Designs along with other branches of intellectual property law are not just fanciful thoughts but necessities of modern societies in striving toward progress and prosperity.       

The Journey: An Industrial Design starts with ‘Sight’.  It is the foremost point of attraction to a customer, the visual appeal/aspect.  Yet, it doesn’t stop there.  The customer is then goaded to the tactile part of the design as to how the product ‘Feels’ which could be the touch, texture, topography et.al. From there on, the design invites the viewer to interact with it and tries to form an emotional connect. This forms the deciding point for the customer to be inspired enough to covet the product, else aspire to acquire it.  Thus, a judgment is formed as to whether the product bears a ‘good design’ worthy enough to give bang for the buck. Furthermore, the buyer looks for variety or improvements over existing designs so as to add to the repertoire. This makes the whole design journey as exciting and thrilling both for the designers as well as the buyers.  

The Elements: As  explained by Experts the elements of design: Colour, Line, Shape, Texture, Space, Form, Unity, Harmony, Balance  These aspects have to come together in a design application and even more so in a multiclass design application.  Hence strategy and brainstorming is everything.

3.  WHAT ARE INDUSTRIAL DESIGNS?  The Dictionary meaning attributed to a design is to work out the structure or form of (something), as by making a sketch, outline, pattern, or plans  Industrial designs are not only inclusive of the above but go beyond by incorporating the following as well:

- Enhancing the visual appeal of an object and advancing its usability by way of improvements over existing designs.  

- Extending the scope of protection to new and unique designs rendered by upcoming and latest technology.  

- Encouraging better forms and shapes of objects which aid in improving working environments that ensure better productivity and output by humans.  Legally an Industrial design is:  

- The outward appearance of a product or part of it.  

- The lines, shapes, contours, shapes and patterns along with ornamentation that constitute the design.  

- Industrial designs must be capable of being produced / manufactured industrially several times over.  

- It is very important to note that, industrial designs are not related to the ‘functionality’ aspect of a product as that would fall under the scope of patent protection.  

4.  WHY  PROTECT DESIGNS?  Patent law deals in ‘behind the scenes’ aspects of a company or organization as it deals with inventions that are not easily accessible by the general public.  Designs along with Trademarks on the other hand, are the ‘visual medium’ which aid in brand projection, recognition, association and retention by existing and potential customers.  Prevention from copying industrial designs by rivals is therefore an important and strategic aspect in the protection of intellectual property rights. Therefore, as with all IP, it is better to begin protection of designs at the earliest before disclosure to and sharing with the general public.

5. BENEFITS OF INDUSTRIAL DESIGN REGISTRATION:  Certain countries that follow cumulative protection of Industrial Designs by Copyright as well as Design laws have the ‘Unit of Art’ principle that needs to be followed meaning, entitlement to  copyright for applied and other art work shall be determined through the same criteria.  

In today’s highly impulse driven and temperament market, industrial designs provide the requisite edge to push products into consumers’ psyche.  Such is the craving for fashionable and well crafted products that looks can often be equally or more important that the products’ functionality itself.  

Registration of Industrial Design Rights becomes a valuable asset which gives the following benefits:  

A substantial return on interest (ROI) as the popularity of the product is directly proportional to its reproduction and counterfeiting thus enabling swift legal action in preventing copycats and frauds thereby ensuring that the design is not diluted.  

Infringement of designs can help owners obtain damages and recover costs for the same.  

Registration of designs can help owners work on bettering their designs through Research and Development (R&D) on bringing out superior industrial designs thus making it harder to knock off or scale up manufacturing by infringers in order to copy the original designs.  

Registered designs can be sold, licensed, franchised which can all earn royalty.  The same can also be used as a collateral to secure loans.  

Industrial Designs complement even strengthen Trademarks hence making brand attention, brand association and retention, brand recall and usage much easier and interesting.  

3.  Benefits of Industrial Design protection:  To derive benefits out of  Industrial Designs Protection, the designs have to be new and original.    

- Designs registration gives exclusivity over the registered design which counters copying, selling counterfeit goods, parallel imports in the grey and black markets thereby preventing unlawful gains by unscrupulous persons.  

- Designs registration gives statutory rights to sue the infringers by way of civil and criminal remedies and compensation in courts of law.  

6.  International Designs Registration and Protection – How essential is it?  It is important to register designs in as many countries as possible  because:  

- Global protection of industrial designs by way of design filings in as many countries as possible will help in better valuation and commercialisation.    

- Protection to industrial designs globally is subjected national laws of the respective countries aided and facilitated by international industrial designs protection regime.

7. MULTIPLE INDUSTRIAL DESIGN APPLICATIONS – An Overview:  

The Reasons: Multiple Design Applications allow several designs to be filed in the same application.  However, the most important aspect to remember is the ‘Unity of Class’ requirement which means, the main class of the designs intended to be protected must be same whereas, sub-classes can be different. However, they all must conform to the Locarno Classification.      

The Benefits: The benefits are obvious. By filing several designs in the same application leads to cost effectiveness and time efficacy as the effort involved in filing many applications can be exhausting.  Some countries allow multiclass applications whilst offering bulk discounts for the same and some countries do not.  Applicants hence have to devise their resources accordingly so as to make the most from the provision of multiclass applications.      

The Concept: Along with ease of usage, industrial designs have to add to users’ sense of self worth which means that the designs are worthy of investing, displaying, owning and of course flaunting.  A good, well crafted and designed product gives immense joy and pleasure and upon withstanding the test of time, could become an antique or an heirloom even adding that much more pride.      

The Nuances: Industrial Design is a many layered object. From being usable, delightful and meaningful, there has to be a certain harmony to the entirety of the end object/product, which is what needs to come across in multiclass applications.  A unified whole lies at the heart of a successful design.         

International protection of Industrial Designs:  Internationally, Industrial Designs are protected through various international treaties and conventions such as:  

i.  the ARIPO treaty for  former English  colonies in the African Region  

ii. OAPI treaty for former French colonies in the African Region

iii.  European Union Community Designs Protection by OHIM  

iv.  the Hague System of International Design Registration    

Kindly refer our guides for the same. 

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