Industrial Design
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What is an industrial design?
An industrial design is the ornamental or aesthetic aspect of an article. The design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or color.
Industrial designs are applied to a wide variety of products of industry and handicraft: from technical and medical instruments to watches, jewelry, and other luxury items; from housewares and electrical appliances to vehicles and architectural structures; from textile designs to leisure goods.
To be protected under most national laws, an industrial design must appeal to the eye. This means that an industrial design is primarily of an aesthetic nature, and does not protect any technical features of the article to which it is applied.
About Industrial Designs
Why protect industrial designs?
Industrial designs are what make an article attractive and appealing; hence, they add to the commercial value of a product and increase its marketability.
When an industrial design is protected, the owner - the person or entity that has registered the design - is assured an exclusive right against unauthorized copying or imitation of the design by third parties. This helps to ensure a fair return on investment. An effective system of protection also benefits consumers and the public at large, by promoting fair competition and honest trade practices, encouraging creativity, and promoting more aesthetically attractive products.
Protecting industrial designs helps economic development, by encouraging creativity in the industrial and manufacturing sectors, as well as in traditional arts and crafts. They contribute to the expansion of commercial activities and the export of national products.
Industrial designs can be relatively simple and inexpensive to develop and protect. They are reasonably accessible to small and medium-sized enterprises as well as to individual artists and craftsmen, in both industrialized and developing countries.
How can industrial designs be protected?
In most countries, an industrial design must be registered in order to be protected under industrial design law. As a general rule, to be registrable, the design must be "new" or "original". Different countries have varying definitions of such terms, as well as variations in the registration process itself. Generally, "new" means that no identical or very similar design is known to have existed before. Once a design is registered, a registration certificate is issued. Following that, the term of protection is generally five years, with the possibility of further periods of renewal up to, in most cases, 15 years.
Depending on the particular national law and the kind of design, an industrial design may also be protected as a work of art under copyright law. In some countries, industrial design and copyright protection can exist concurrently. In other countries, they are mutually exclusive: once the owner chooses one kind of protection, he can no longer invoke the other.
Under certain circumstances an industrial design may also be protectable under unfair competition law, although the conditions of protection and the rights and remedies ensured can be significantly different.
What cannot be protected by industrial design rights?
Designs that are generally barred from registration in many territories include:
designs that do not meet the requirements of novelty, originality and/or individual character;
designs that are considered to be dictated exclusively by the technical function of a product; such technical or functional design features may be protected, depending on the facts of each case, by other IP rights (e.g. patents, utility models or trade secrets);
designs incorporating protected official symbols or emblems (such as the national flag);
designs which are considered to be contrary to public order or morality.
Some countries exclude handicrafts from design protection, as industrial design law in these countries requires that the product to which an industrial design is applied is “an article of manufacture” or that it can be replicated by “industrial means”.
What rights are conferred by industrial design protection?
When an industrial design is registered, the holder receives the right to prevent unauthorized copying or imitation by third parties. This includes the right to prevent all unauthorized parties from making, selling or importing any product in which the design is incorporated or to which it is applied. Because industrial design rights are territorial in nature, this right is limited to the territory for which the design is registered.