Intellectual Property Rights Design

8/6/2019 Intellectual Property Rights Design

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The law of designs has a long history dating back to the latter part ofthe 18th century. Originally introduced to protect the designing andprinting of linens and cottons, design law has been extended overthe years to cover functional as well as decorative articles.

Textiles and the start of industrial design protection

The first Act dealing with copyright in industrial designs wasthe Designing & Printing of Linen Act in 1787. This gave a verylimited copyright protection to those who engaged in the "arts ofdesigning and printing linens, cottons, calicos and muslin". It gave

proprietors the sole right of printing and reprinting for 2 months fromthe date of first publication, provided the name of the proprietor wasmarked on each piece. In 1794 the period of protection wasextended to 3 months.


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The Designs Registry joins the Patent Office

In 1875 the powers and duties of the Board of Trade under the

various Designs Acts were transferred to the Patent Office. In 1883 a single consolidating and amending Act was passed

embracing Designs, Patents and Trade Marks (which had alsojoined the Patent Office).

From 1911-49 design registration was governed by thedesigns portion of the Patents & Designs Acts 1907-1946. In

1949 registered designs were once more separated entirelyfrom patents and the law relating to registered designs wasgoverned by the Registered Design Act 1949. The mostimportant alterations in the law was the amendment of thedefinition of design and the abolition of classification, both ofwhich materially affected the validity as well as the scope of

many registered designs. The Registered Designs Act 1949 is still in force today but asamended by the Copyright, Designs and Patents Act of1988. The act was amended further on 9 December 2001 toincorporate the European Designs Directive. Futureamendments and changes will be necessary to reflect thegrowing and changing needs of design protection.


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India's Design Act, 2000 was enacted to consolidate andamend the law relating to protection of design and tocomply with the articles 25 and 26 ofTRIPS agreement.

The new act, (earlier Patent and Design Act, 1911 wasrepealed by this act) now defines "design" to mean onlythe features of shape, configuration, pattern, ornament,or composition of lines or colours applied to any article,whether in two or three dimensional, or in both forms, by

any industrial process or means, whether manual ormechanical or chemical, separate or combined, which inthe finished article appeal to and are judged solely by theeye; but does not include any mode or principle ofconstruction.


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1. Law: Law is a system of rules and guidelines, usually enforcedthrough a set of institutions. It shapes politics, economics andsociety in numerous ways and serves as a social mediator ofrelations between people. Contract law regulates everything frombuying a bus ticket to trading on derivatives markets. Property lawdefines rights and obligations related to the transfer and title ofpersonal and real property. Trust law applies to assets held forinvestment and financial security, while tort law allows claims forcompensation if a person's rights or property are harmed. If the harmis criminalized in a statute, criminal law offers means by which the

state can prosecute the perpetrator. Constitutional law provides aframework for the creation of law, the protection of human rights andthe election of political representatives. Administrative law is used toreview the decisions of government agencies, while international lawgoverns affairs between sovereign states in activities ranging fromtrade to environmental regulation or military action.


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2. TRIPS:

The Agreement on Trade Related Aspects of Intellectual PropertyRights (TRIPS) is an international agreement administered by the

World Trade Organization (WTO) that sets down minimum standardsfor many forms of intellectual property (IP) regulation as applied tonationals of otherWTO Members. It was negotiated at the end of theUruguay Round of the General Agreement on Tariffs and Trade(GATT) in 1994. Specifically, TRIPS contains requirements thatnations' laws must meet for copyright rights, including the rights ofperformers, producers of sound recordings and broadcasting

organizations; geographical indications, including appellations oforigin; industrial designs; integrated circuit layout-designs; patents;monopolies for the developers of new plant varieties; trademarks;trade dress; and undisclosed or confidential information. TRIPS alsospecifies enforcement procedures, remedies, and dispute resolutionprocedures. Protection and enforcement of all intellectual propertyrights shall meet the objectives to contribute to the promotion oftechnological innovation and to the transfer and dissemination oftechnology, to the mutual advantage of producers and users oftechnological knowledge and in a manner conducive to social andeconomic welfare, and to a balance of rights and obligations.


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3. Repeal: A repeal is the removal or reversal of a law. This isgenerally done when a law is no longer effective, or it is shownthat a law is having far more negative consequences than

were originally envisioned. If a campaign for the repeal of a particular law gains particularmoment, an advocate of the repeal might become known as a"repealer". This happened in 19th century Britain to a group infavor of the re-separation of Ireland from the United Kingdom

Many repeals are the result of changes in society, such as theold Jim Crow laws or blue laws. Other repeals are for moremundane things, such as century-old laws against dancing orcabarets. Some repeals are of extremely old and outdatedlaws that now seem bizarre, such as one from the 19thcentury against bathing.

The motion to rescind, repeal, or annul is used inparliamentary procedure to cancel or countermand an actionor order previously adopted by the assembly.


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Design Rights

Design right gives you automatic protection for

the internal or external shape or configuration ofan original design.

Design right allows you to stop anyone fromcopying the shape or configuration of the

product, but does not give you protection for anyof the 2-dimensional aspects, for examplepatterns.

2-dimensional designs can be protected using

copyright.Design rights can also be bought, sold or

licensed in a similar manner to copyright.


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Who owns the design right?

Typically the creator of the design owns any rights on it,

except where the work was commissioned or createdduring the course of employment, in which case therights belong to the employer or party that commissionedthe work.


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India's Design Act, 2000 was enacted to consolidate andamend the law relating to protection of design. It defines

"design" to mean only the features of shape, configuration,pattern, ornament, or composition of lines or colours applied toany article, whether in two or three dimensional, or in bothforms, by any industrial process or means, whether manual ormechanical or chemical, separate or combined, which in the

finished article appeal to and are judged solely by the eye; butdoes not include any mode or principle of construction.


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Design as a noun informally refers to a plan orconvention for the construction of an object or a system(as in architectural blueprints, engineering drawing,business process, circuit diagrams and sewing patterns.


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An industrial design right is an intellectual property rightthat protects the visual design of objects that are notpurely utilitarian.

An industrial design consists of the creation of a shape,configuration or composition of pattern or colour, orcombination of pattern and color in three dimensionalform containing aesthetic value.

An industrial design can be two or three dimensionalpatterns used to produce a product, industrial commodityor handicraft.


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Design right is a intellectual property right in British

law. Design right prevents deliberate copying.

There are two types of design rights:

The registered design right (Registered Design Act

1949)

The unregistered design right.


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Design right does not subsist in parts of a

design necessary to connect to another article,to surface decoration, to methods and principlesof construction or to those parts of a designwhich are dependent on the appearance ofanother article, where that article and the articlethat design right applies to is an integral part ofthe second article. Design right also does notapply if a design is not original, and a design isdefined as not being original if the object sodesigned is commonplace in the field whendesigned.


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Patent owners have civil law remedies to protect their patent. A patentowner places the patent because they wish to have complete rights over aninvention or process, so having a recourse when a patented invention is used byanother person or company for financial or other gain is important.

Selling a Patented ItemPatent holders have options to seek remedy when someone else sells a patenteditem. Damages, including damages for profits lost because another product was sold,can be awarded by the courts. The amount sought can be tripled according to USlaw. Patent owners can also seek attorney's fees.

Patent DesignIf a person or company duplicates a design that is patented, the patent owner can

seek retributive actions. The person or company might owe the patent owner anyprofits made from the design. The patent owner may also seek remedies like thosefor selling a patented product including damages, however the patent owner can notseek those damages twice.


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F

alse AdvertisementsFalsely claiming an item is patented or that a patent is pending is againstthe law. In that case, the United States government seeks damages. Theoffender faces a fine of up to $500 for every offense. Any person mayalso sue for damages. In that case, the person suing and the governmentsplit the damages.

State OffensesIn the event that the United States government infringes on a patent, or aproduct made for the United States infringes on a patent, remedy may

also be sought by the patent holder. The patent holder can sue thegovernment for damages. The owner can also sue for attorney fees andthe costs of taking the offense to court.


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TRIPS AGREEMENT- Section 4 - Article 25: Requirements for Protection

Article 25.1 of the TRIPS Agreement obliges Members toprovide for the protection of independently created industrialdesigns that are new or original. Members may provide thatdesigns are not new or original if they do not significantly differ

from known designs or combinations of known designfeatures. Members may provide that such protection shall notextend to designs dictated essentially by technical orfunctional considerations.

Article 25.2 contains a special provision aimed at taking intoaccount the short life cycle and sheer number of new designsin the textile sector: requirements for securing protection ofsuch designs, in particular in regard to any cost, examinationor publication, must not unreasonably impair the opportunity toseek and obtain such protection. Members are free to meetthis obligation through industrial design law or throughcopyright law.


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TRIPS AGREEMENT- Section 4 - Article 26: Protection

Article 26.1 requires Members to grant the owner of a

protected industrial design the right to prevent third parties nothaving the owner's consent from making, selling or importingarticles bearing or embodying a design which is a copy, orsubstantially a copy, of the protected design, when such actsare undertaken for commercial purposes.

Article 26.2 allows Members to provide limited exceptions tothe protection of industrial designs, provided that suchexceptions do not unreasonably conflict with the normalexploitation of protected industrial designs and do notunreasonably prejudice the legitimate interests of the owner ofthe protected design, taking account of the legitimate interests

of third parties. The duration of protection available shall amount to at least 10

years (Article 26.3). The wording amount to allows the termto be divided into, for example, two periods of five years.


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CASE STUDY

International Seaway Trading

Corp. v. Walgreens Corp


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International Seaway Trading Corp.

argued that the that the so-called point ofnovelty test was no longer valid in

determining design patent infringement.

Design patent infringement was to be

judged solely by the ordinary observertest


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In determining that the 263 patent wasanticipated, the district court applied only theordinary observer test in comparing the shoedesign in the 263 patent to that of the Crocs789 patent.

A comparison of the side profiles only of theexterior of the shoe design (FIG. 2 of the 263patent to FIG. 1 of the Crocs 789 patent)suggests why the district court reached the

conclusion that the 263 patent was anticipatedby the Crocs 789 patent


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But the district court also concluded that a comparison ofthe insoles of these shoe designs was unnecessarybecause those portions of the shoe design wouldinvisible during normal use regardless of whether those

portions are visible during the point of sale.

The design patentee (Seaway) appealed the grant ofsummary judgment, arguing that the district court should

have also applied the point of novelty test


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Apple targeted Samsung with a major lawsuit onApril 18. The company claimed that Samsung'sGalaxy-series of Android-based smartphones andtablets infringe on Apple's iOS-related software,hardware, and design patents, as well as iOS-

related trademarks and trade dress. In addition toclaiming Samsung copied the iPhone's physicaldesign, Apple noted that the TouchWiz interfaceviolated design patents and trademarks, and even

copied the iPhone trade dress down to its boxdesign.


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Days later, Samsung filed three separate patent

infringement lawsuits in South Korea, Japan, andGermany. Those lawsuits allege that Apple's iPhoneuses Samsung intellectual property to connect toand improve communications with cell towers.

Samsung implied that Apple was trying to bully asuccessful competitor

Samsung's US lawsuit targets the iPhone, whichallegedly violates 10 Samsung patents that "relate tofundamental innovations that increase mobile devicereliability, efficiency, and quality, and improve userinterface in mobile handsets and other products."


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Apple wants Samsung to pay up for theinfringements in the past and stop infringing in thefuture. Specifically, Apples asking the court topermanently forbid Samsung and its various

divisions and suppliers from ever infringing Applesclaimed IP again, as well as triple damages forpatent infringement, any wrongful profits Samsungmight have gained from using Apples IP, some

punitive damages, money for corrective advertising,and the cost of Apples attorneys fees.


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Samsung is content on releasing more Androidtablets despite that pending legal spat with Apple,which is accusing them of stealing the iPads andiPhones design, software features and hardware

engineering with the Galaxy-branded tablets andsmart phones.

When asked to comment on that pending lawsuitwith Apple, Samsungs J.K. Shin responded Wedidnt copy Apples design. We have used manysimilar designs over the past years and it [Apple'sallegation] will not be legally problematic.

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