Industry designs have emerged as one of the potent means to create an exclusive brand in the market. A well-crafted, meticulously created design can help businesses go a long way as they provide a tangible means to ensure exclusivity to products and help them stand apart in a competitive market wherein new products rolls-in on the shelf with the passage of every single day.
In the world of intellectual property, design refers to the ornamental, aesthetic and generally non-functional aspect of a product which helps consumers identify and spot products without investing much of their time. Take for instance the design of the Coca-Cola contour bottle which you can identify and relate even in the dark night. It seems very simple but it took many years for the company to create a design of bottle that can stand apart in a shop which is packed with many such beverages containing bottle.
Simply put, the company has managed to create a strong brand identity which can help them market their products comfortably. Apart from brand identity these unique designs also give legal protection to the owner against copycats and counterfeiters. Means if someone else’ use the same design in their products they are liable to compensate the original designer.
However, one of the agonies of today’s IP regime is the lack of homogeneity among various jurisdictions when it comes to filing design patent or protecting design of a product. For example, the design protection regime of the United States is completely different from that of the European Union or Australia or Japan. So a design granted protection in the European Union doesn’t necessarily be protected in EU jurisdiction and they can be rejected outright.
Thus, it is imperative for designers to understand how each of these jurisdictions give protection to designs and how do they react to unique designs. With this article we will discuss the prevailing industry designs protection regime of these jurisdictions and will also try to understand how they are different from each other.
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Industry Design Laws in the United States
In the United States industry designs are protected using United States Patent Law (135 USC) which is also governing patents/ trademarks and copyrights. In other words there is no independent design patent law in the United States and unregistered designs are protected through already existing trademark and copyright law.
One of the striking features of the United States design law is that only articles of manufacture are eligible to be protected. Thus, if you have come-up with a new design in the domain of fashion and apparel you may not be granted protection for it. Same goes true for packaging designs, graphic user interface, logos and other graphic symbols.
Second thing that we ought to consider while protecting designs in the United States is that there is no clear cut distinction between ornamental and functional designs which makes protecting designs more problematic. The United States is yet to adopt a sui-generis industrial design law that could protect the interest of design owners. Apart from this, there is also a need in the United States to eliminate distinctions between ornamental and functional designs. The complexity of the US design law could be understood with the verdict of Bonito Boats vs. Thunder Craft Boats wherein the Court ruled that “a design to be eligible for protection must have an aesthetically pleasing appearance (which is not merely for functional purposes) along with other criteria of patentability.” Thus, if you have designed a product merely to support its function it may not be eligible to be granted design protection. However, this is not the case with European Union.
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Industry Designs Law in the European Union
In the European Union the case is a bit different. Unlike the United States, European Union protects a wide variety of design that includes designs related to fashion and apparels including packaging designs, graphic user interface, logos and graphic symbols. The EU is moving towards Uniform European Design patent regime, though it is yet to be implemented fully. However, harmonization among regional laws with regard to design protection is yet to be achieved.
Unlike United States wherein designs are protected through trademark and copyright laws, the European Union has a separate and distinguished “Unregistered Community Design Route” which is used to give protection to industrial designs. Such an option is suitable mainly for small companies and freelancers that are willing to protect their designs for a shorter period and that too at a much lesser cost.
Industry Designs Law in Japan
Japan has sui-generis forms of design protection. Though Japan has an independent design law but it is greatly under the influence of existing patent laws. Means patent laws are still used in design laws with mutatis-mutandis. The industrial design law, thus, is very similar to the laws of United States wherein one can see clear-cut influence of existing patent, trademarks and copyright laws. However, due to sui-generis nature of the design laws, this regime is broader compared to that of the United States.
Japan design law however has tried to blur the distinction between an ornamental design and a functional design and thus protection could be granted to any product as long as it produces an aesthetic impression on the sense of sight. This becomes very significant for protecting design rights for products in the domain of fashion, packaging, graphic user interface, logos and graphic symbols.
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The complexity of design law in various jurisdictions makes it important to understand them thoroughly, so that things are achieved quickly and cost-effectively. In a situation wherein the designer is a newbie they can take help of industrial design filing service providers who are competent in designing, developing and filing industry designs in various jurisdictions. Apart from law firms, industrial design services these days are provided by many KPOs that are competent enough and are cost-effective. Thus these KPOs can be used as an alternative to law-firms which are comparatively costly.
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