Industrial Design Rights

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Industrial design rights are intellectual property rights that protect the visual design of objects that are not purely utilitarian. 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.

Under the Hague Agreement Concerning the International Deposit of Industrial Designs, a World Intellectual Property Organization-administered treaty, a procedure for an international registration exists. An applicant can file for a single international deposit with WIPO or with the national office in a country party to the treaty. The design will then be protected in as many member countries of the treaty as desired. Design rights started in the United Kingdom in 1787 with the Designing and Printing of Linen Act and have expanded from there.

Legislations Canada Canada's industrial design act affords ten years of protection to industrial designs that are registered; there is no protection if the design is not registered. The Industrial Design Act (R.S., c. I-8) defines "design" or "industrial design" to mean features of shape, configuration, pattern or ornament and any combination of those features that, in a finished article, appeal to and are judged solely by the eye.

During the existence of an exclusive right, no person can "make, import for the purpose of trade or business, or sell, rent, or offer or expose for sale or rent, any article in respect of which the design is registered." The rule also applies to kits and substantial differences are in reference to previously published designs.

Japan Article 1 of the Japanese Design Law states: "This law was designed to protect and utilize designs and to encourage creation of designs in order to contribute to industrial development". The protection period in Japan is 15 years from the day of registration.

United States U.S. design patents are very similar to U.S. utility patents, and most of the governing law is the same. Two major differences are that design patents (1) last fourteen years from the date a patent is granted, not twenty years from the date that an application is filed, and (2), contrary to what is suggested above, cover the ornamental aspects of utilitarian objects. Objects that lack a use beyond that conferred by their appearance or the information they convey, may be covered by copyright -- a form of intellectual property of much longer duration that exists as soon as a qualifying work is created. In some circumstances, rights may also be acquired in trade dress, but trade dress protection is akin to trademark rights and requires that the design have source significance or "secondary meaning." It is useful only to prevent source misrepresentations; trade dress protection cannot be used to prevent others from competing on the merits.

United Kingdom Under UK law there is both a registered design right and an unregistered design right. The unregistered right, which exists automatically (depending on where and by whom the design is created), lasts up to 15 years (depending on when articles according to the design are put on the market), while the registered design right can last up to 25 years. UK residents can also use the European Community Designs regime administered, as far as the registered right is concerned via OHIM in Alicante.

Bibliography

Brian W. Gray & Effie Bouzalas, editors, Industrial Design Rights: An International Perspective (Kluwer Law International: The Hague, 2001) ISBN 90-411-9684-6