Beruflich Dokumente
Kultur Dokumente
Evolution of Competition
Traditional product Technology Pricing of product Quality of Product
Design differential
1
When companies are competing at equal price & functionality Design is the only differential
that matters
Mark Dziersk, quoted in TIME Magazine
It is a new or original idea in relation to the features of shape, configuration, Pattern, Ornament, Composition of lines or colours or combination thereof applied to any article by an industrial process
It signifies something solid (in three dimensions) where an idea is incorporated into the article
Example - feeding bottle
Pattern, Ornament
It relates to something two dimensional
Example- engraving on metal or like ornamentation on carpet by various geometric figures in combination of color etc.
Mere painting of natural scenes or like on
Industrial Designs
Business (Idea) point of view:
Make your product appealing to consumers Customize products in order to target different customers (e.g. Swatch) Develop the brand (e.g. Apple s Think Different strategy; i Pod)
Benefits of Registration
Exclusive right to apply design to the
design.
Licensing of design as legal property for
consideration or royalty.
Design enlarged
Addition of definition of the term Original Introduction of delegation of powers to
(Locarno classification)
a registered Design
Public inspection available after notification Rights of Registered Proprietor defined Provision of Restoration of Lapsed Design
of design
Additional grounds for Cancellation of design
made mandatory Penalty for piracy of registered design enhanced Inclusion of Paris Convention Countries apart from Commonwealth Countries for priority
Sec 2(a) Article: Means any article of manufacture and any substance, artificial or partly artificial and partly natural and includes any part of article capable of being made and sold separately
(c) (d )
A design whichis not new or original; or has been disclosed to the public any where in India or in any other country by publication in tangible form or by use or in any other way prior to the filing date, or where applicable, the priority date of the application for registration; or is not significantly distinguishable from,known designs or combination of known designs; or comprises or contains scandalous or obscene matter
New or Original
Novelty is judged solely by eye w.r.t. external appearance of the finished article Neither constructional details nor utility of article are relevant for registration Novelty may reside in its application to article Absolute novelty- i.e. Not publicly known or used in India or elsewhere.
Original
In relation to design means: originating from the author of such design and includes the cases which though old in themselves yet are new in their application [sec 2(g)]
article not visible or noticeable in finished article. Principle or mode of construction of the article Building and structures Sole functional features Part of an article not sold separately Variation commonly used in trade Stamps, Labels, Tokens, Medals, Trade Marks , Property Marks, Cards, Cartoons. Mere change in size. Designs contrary to public order or morality or scandalous Computer chip, Integrated circuit designs
trade
Mere workshop alteration Flags, emblems, or signs of any country,
computer icons
Filing Requirements
Applicant : Application :
Applicant means any individual or legal entity. One application in prescribed form for one design in one class with prescribed fee.
different views of the article for clear understanding the nature of article.
Declaration :-
KOLKATA H.O.
Delhi
Mumbai
Chennai
Receiving Center
Contd
sheet Photographs/line diagrams/ computer graphics of the article Name of the views Statement of novelty Disclaimer Signature of the applicant/ agent DATE
Representation Sheet
Name of the Applicant XYZ, PVT.LTD. Date :No. of sheet - 05 Sheet No.- 01
Side view
Statement of Novelty
Novelty resides in the shape and configuration of the Pressure cooker as illustrated. Or Novelty resides in the shape and configuration particularly in the portions marked A & B of the Pressure cooker as illustrated.
Statement of Disclaimer
No claim is made by virtue of this registration to any right to
any mechanical or there action of the mechanism whatever or in respect of any mode or principle of construction of the article.
No claim is made by virtue of this registration to any right to
the exclusive use of the words, letters, numerals, flags, crowns, etc. appearing in the design.
Example of Representation
The novelty resides in the shape & configuration of the 'CHAIR' as illustrated.
No claim is made by virtue of this registration in respect of any mechanical or other action of any mechanism whatever or in respect of any mode or principle of construction of the Article.
No claim is made by virtue of this registration to any right to the exclusive use of the words, letters, numbers, or trade marks appearing in the representation. Dated: Signature of the applicant/agent (Name of the Signatory)
The novelty resides in the shape & configuration of the 'CHAIR' as illustrated. No claim is made by virtue of this registration in respect of any mechanical or other action of any mechanism whatever or in respect of any mode or principle of construction of the Article. No claim is made by virtue of this registration to any right to the exclusive use of the words, letters, numbers, or trade marks appearing in the representation. Dated: Signature of the applicant/agent (Name of the Signatory)
4
5 6 7 8
4
--5 6 7
1000.00
1000.00 500.00 500.00 1000.00 Contd
On What possible
On application for cancellation of design under Section 19
Notice of intended exhibition or publication of an unregistered design under Section 21 Application for registration of a document in Register of Designs under Section 30(3): (i) In respect of one Design; (ii) For each additional Design One application for entry of name of proprietor or part proprietor in Register of Designs under Section 30: (i) In respect of one Design; (ii) For each additional Design On application for entry of mortgage or license in Register of designs under Section 30: (i) In respect of one Design; (ii) For each additional Design
1500.00
500.00
12
13
Application for entry of notification of a document in the Register of designs under Section 30 and Rule 37: (i) In respect of one Design; (ii) For each additional Design On request for correction of clerical error under Section 29
15 16 17 18 19 20
14 15 16 17 18 19
On request for certificate under Section 26 and Rule 42 On application for certified copy of Registered design Under Section 17(2) On application for rectification of Register of design Under Section 31 On application for extension of time for filing priority Document under Rule 15. On Notice of opposition under Rule 40
100.00
Notice of intention to attend hearing under Rule 29 and 40 Form for authorization of agent or other person. On request to alter name or address or address for Service in the Register of design under Rule 31. On request for entries of two addresses in the Register of Design. On petition under Rule 46 for amendment of any document On petition under Rule 47 for amendment of any document Inspection of Register of Design under Rule 38 (in respect of each design).
---200.00
24 25 26 27
23 -------
Examination
Communication of Objection (s)
Abandoned
Refusal
Acceptance
Notification in the Official Gazette
Issue of Certificate
More articles
Textiles dress materials ,mobiles set,
cycle,
electrical appliances, containers ,
Sports goods
other appliances
Consumer Products
Pharmaceutical Product
Contd.
Contd.
Contd.
Contd.
Contd.
Contd.
Contd.
Contd.
Confusion is worse with Trade mark definition being amended Shape is also a trade mark But articles like dresses, sculpture etc., cannot come in trade marks. However commercial products have more overlaps in protection.
Design
As per Copinger and Skone James on Copyright, a design is, in broad
terms, the plan or scheme for the appearance of an article (or a part of an article).
It primarily concerns with what an article looks like or is intended to look
like.
It is not concerned with how an article performs its function. The design
of an article may be recorded in any form including the written description, sketch, drawing, photograph or it could actually be embodied in the article itself. Design has also been defined as the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article. Copinger & Skone James on Copyright, 15th Edn., Vol. 1, pg. 730
Infringement
Infringement in the context of Indian Textiles, Apparels and Life Style
purpose, including but not limited to for instance, making of garments, bed sheets, sofa covers, table cloths, etc., then the artistic patterns printed on the piece of cloth are protected as copyrights.
On the other hand, if a designer of clothes creates a new pattern of
garment to be used as a fashionable attire, then the sketch/ drawing that is drawn of the pattern of the garment is protected as a copyright.
Infringement
However, once the idea of the creative pattern is implemented on the
garment is manufactured, then the same could also be protected as the artistic work imprinted on the piece of cloth having copyrights.
Alternatively, if the designers intention is to produce several
thousands of garments in different scheme of colours, etc., then the intention of the designer is to use the said design in the industry. Accordingly, the latter form of use of the same material may be considered to be a design.
There is an ongoing debate on the issue and a lot depends on the
manner, in which the author of the work intends to use the work.
Indian Cases
Cases
Tahiliani Design Private Ltd. vs. Renu Tandon & Anr. C.S. (OS) No. 2222 of 2008 Before Honble Delhi High Court
Cases
Tahiliani Design Private Ltd. vs. Renu Tandon & Anr. C.S. (OS) No. 2222 of 2008 Before Honble Delhi High Court
Allegation that the Defendants garments were copies of the
and crafted by the plaintiff as a part of their collection for the year 2006
The Honble Delhi High Court vide order dated 21.10.2008
Cases
Tahiliani Design Private Ltd. vs. Renu Tandon & Anr. C.S. (OS) No. 2222 of 2008 Before Honble Delhi High Court
Defendant served notice. Application for vacation of stay moved claiming that both
Cases
Suneet Varma Design Pvt. Ltd. Vs Jas Kirat Singh Narula & Anr. [2007 (34) PTC 81 (Del)]
Allegation of infringement of
copyright as the defendant used the dress in a movie which was worn by an actress
Importance of costumes worn by
actors and actresses in a film play special role and serve purpose of promotion of the movie
Held that all kinds of clothes worn by
actors cannot be stated as Fair Use permitted under sec 52 (1) (u).
Cases
Microfibres Inc vs. Girdhar and Co. and Ors. : 2006(32) PTC 157 (Del)
Case relating to design of upholstery
Plaintiff claimed to have copyright in the artistic work applied to
upholstery design
Did not have a registered design however they claimed a
Cases
Microfibres Inc vs. Girdhar and Co. and Ors. : 2006(32) PTC 157 (Del)
Question was whether without a registered design, the plaintiff could
protect the same and whether the copyright was lost because of more than 50 reproduction of the said upholstery fabric design
The Court although upholding that the motives etc. of the plaintiff
was artistic and also holding that the defendants had copied it, on a legal and technical argument that more than 50 reproduction had been made, refused to grant injunction
Cases
1997(17) PTC 268: Baldev Singh vs. Shriram Footwear
Cases
Hindustan Sanitaryware & Industries Ltd. vs. Dip Crafts Industries: 2003(26) PTC163 (Del)
Case under the Designs Act, 2000 Plaintiff had claimed that defendants copied the design Stylush,
Corel and Ultra in respect of bath tubs Defendant had not established that he had been selling bath tubs prior to the registration obtained by plaintiff in respect of similar designs Plaintiff had a registered design Sufficient resemblance between the two designs and the plaintiffs design was protected
Cases
Metro Plastic Industries (Regd.) vs. M/s. Galaxy Footwear New Delhi: 2000(20) PTC 1
Judgment of full bench of Delhi High Court
Holds primarily that in a case filed for infringement of a design, the
defendant would be entitled to take a defence that the registration of the design itself was incorrect Various grounds can be taken for claim that the registration was granted wrongly, namely, that the design is not new or original or unique If any of the grounds can be proved, then the fact that the design is registered by itself, does not come to the aid of the plaintiff Registration can be a proof at the first stage but it has to be established that this was not copied design and that it is a new and original
Cases
Dabur India Ltd. Vs. Rajesh Kumar & Ors 2008 (37) PTC 227
Suit filed alleging infringement of design in respect of a bottle
which is being used by plaintiff for packing hair oil Court found plaintiffs bottle to be common bottle used by several other companies Bottles were held to be in use much prior to the registration of the design of the plaintiff No peculiar feature of the bottle registered as a design and the plaintiff had not pin pointed any novelty in the design of the bottle Held that for validly of the registered design there must be some novelty and originality in the design sought to be protected and it must have not been pre-published
Cases
Vikas Jain Vs. Aftab Ahmad And Ors, 2008 (37) PTC 288 (Del)
Suit filed for the infringement as well as passing off of design in
Toy Scooter The defendant pleaded the prior publication of the design Another defense taken by the defendant was that the defendant too was having the registration of the design Court held that there were various dissimilarities in the prior published design The design of the defendant was identical to the design of the plaintiff Hence the defendant is not protected even on account of the registration having been obtained by it which admittedly is the subsequent registration
Cases
Reckitt Benckiser Australia Pty Ltd. And Anr Vs. R. B. Impex And Ors 2008 (37) PTC 262 (Del)
Suit for infringement of a design, where the defendant had filed a
cancellation petition with the Controller of Designs Proceedings pending before the controller of Design who had heard the arguments in the cancellation petition before him and the order had been reserved Defendant had also sought the transfer of the cancellation proceedings from the Controller to the Honble Delhi High Court Honble High Court declined to stay the proceedings pending before the Controller and to order for the transfer of those proceedings as there was no provision for the transfer of the cancellation proceedings under the Act
Cases
Sat Pal Singh Vs. S.P. Engineering Works - 1982(2) PTC 193
Single Judge of this Court held that once a design was registered,
prima facie, it was only the registered proprietor, who could take benefit of the registered design The Court then negatived the contention that even if a false plea about the validity of registration was taken up by a Defendant, no interim injunction should be granted. The Court went on to hold that the contention that the design had no novelty was a valid defence to the Suit and could be raised to challenge the validity of the registration. It further held that this did not have any bearing at the initial stage and that these were matters to be decided on evidence. It must be mentioned that after so holding the Court, went into the merits and held that in that case it had not been shown that the design was previously published
Cases
Faber Castell Vs. Pikpen - 2003 PTC 538
Faber Castell Textliner. A dark green body Unique cap of same colour as colour of
ink Gold lettering on green body Regd design. Prior Publication could be through prior documents or some other prior user. Injunction granted
Cases
Samsonite Vs. Vijay Sales 1998 PTC 372
Suitcases made by plaintiff copied
by defendant
The entire range was copied Claim was based on drawings &
copyright
No registered design No protection granted as it is
Cases
Preeti Gupta Vs. Rajendra Prahladkar 2002 PTC 64
plaintiff
Injunction granted protecting the
International Cases
RADELY GOWNS Ltd. v COSTAS SPYROU and BROKE v SPINCERS DRESS DESIGN Ltd.(1975) FSR 455
ladies clothing. Copyright claimed in 3 stages of Manufacturing Procedure viz., - design sketches, - cutting patterns - prototype garments
RADELY GOWNS Ltd. v COSTAS SPYROU and BROKE v SPINCERS DRESS DESIGN Ltd.(1975) FSR 455
Def argued
Prototype is not work of artis.crtms. No one author is involved Cutting patterns are functional One of the sketches was copied from earlier dress Dress could not reproduce a sketch Stiffness was to be given otherwise it is not a dress Delay
RADELY GOWNS Ltd. v COSTAS SPYROU and BROKE v SPINCERS DRESS DESIGN Ltd.(1975) FSR 455
Court Held:
It is work of A.C Need not unite with one author Dress can be a 3 dimensional reproduction of a sketch Huge diff between the earlier dress and new one, hence plaintiff work is original
It has been observed that if there is a direct copying from a garment which one person has designed and produced by himself, doing all the cutting , stitching, and so on, there might be a case for saying that there would be a breach of doing that.
copyright in certain sketches for ladies garments in which the garments were shown as worn by ladies. They had displayed garments made from such sketches in fashion shows and shop windows. Defendants have copied the dresses produced from plaintiffs sketches. It was held that this constituted infringement of copyright in sketches.
BURKE and MARGOT BURKE Ltd. v SPINCERS DRESS DESIGNS (1936) CH D 400 The plaintiffs alleged that
defendants had infringed the copyright in the sketch described as frock being worn by a young lady It was also alleged that there was infringement of artistic copyrights in dresses made up by the plaintiffs in accordance with those sketches, which dress themselves were said to be works of artistic craftsmanship It was held that thee was no infringement of a sketch by a frock.
cape for her child. The cape was subsequently manufactured by the second plaintiff. The defendants copied the plaintiffs garments and made baby cape in accordance with the copy. The plaintiff claiming the handmade prototype garment as a work of craftsmanship it was not a work of artistic craftsmanship brought an action for infringement of copyright.
was a work of craftsmanship it was not a work of artistic craftsmanship. It was held that in approaching the question the garment has to be considered by itself and neither as worn nor as containing a baby. No aesthetic satisfaction unless worn on the baby Action was dismissed. An appeal against infringement of certain drawings was dismissed.
pictures) comprising a mixture of liquid, colored sands, and a layer of air bubbles encased within two glass panels was held not a work of artistic craftsmanship.
They are functional not regd
design
Cases
MERCANDISING CORPORATION v
HARPBOND(1983) FSR 32 P, 32 (Facial make-up was not held a painting within the meaning of sec 3 of the U.K. copyright act.)
parts which are mostly hidden and never seen, such parts cannot be registered as designs.
However, parts and their circuits if in drawing form are artistic works
sold Def. copied the chairs and hence the prototype Trial Court granted injunction. Appeal court dismissed the injunction. HL refused protection
Art craftsmanship
Ants
New look for himself with Red-Indian
face markings
Two red lines in grease paint, light
blue line in between, heart over left eyebrow & a beauty spot
Def. made a poster of it & made a
Animal Fair Inc., Vs. Amfesco Inds 227 USPQ 817 (1985)
Novelty slippers Resembles a bears foot or paw Slippers design features separate
from its utilitarian features, incl. impractical width of sole, shape of sole, profile of slipper, toes which are unrelated to function and copyrightable.
Injunction granted.
Conclusion
Technological advancement made the job of the creator easy it also made the job of the copier easy. Consciousness in IPR is the only way to prevent the latter.