Intellectual Property refers to the works created by the human mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce. These intellectual properties are protected in law by means of patent protection, copyright, trademarks, etc. This protection helps the innovators to earn recognition for their work and also earn financial benefits. It also protects copying and infringement of the work. By creating a balance between ideas of the creators and wider public interest, Intellectual Property law aims to promote an environment conducive to the growth of creativity and innovation.
The works produced by literary and artistic authors such as paintings, music, computer programs, and films are protected by intellectual property rights. “In a legal sense, an industrial design constitutes the ornamental or aesthetic aspect of an article. An industrial design may consist of three-dimensional features, such as the shape of an article, or two-dimensional features, such as patterns, lines or color.”
WHAT IS DESIGN?
John Heskett, a design historian, has described design as “to produce a design to design a design.” “Evidently, answering the question “what is a design?” is harder than one might think. Initially, the design was considered to be the supplementary stylistic aspects of the appearance of a product, prevalent more in the fields of advertising and sales, as opposed to the actual development of the product itself and its features.” Under the Designs Act, 2000, the design is defined under Section 2(d) of the Act defined as:
“only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trademark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in section 479 of the Indian Penal Code (45 of 1860) or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957 (14 of 1957).”
ESSENTIALS OF A DESIGN
Section 4 of the Designs Act, 2000 lays down certain attributes which design should have to be registered as a design. The prescribed attributes are as follows:
- A design should be applied to an article
- A design should appeal to the eye
- A design should be new or original: A design should be novel and unique in order to considered for registration. For a combination of previously registered designs to be qualified for registration, it should create new visuals. In the case of Steelbird Hi-Tech India Ltd. v. S.P.S. Gambhir 2014 (58) PTC 428 (Del), it was held that “In order to know its newness or originality it is necessary that a design identical with or even materially similar to the relevant design should not have been published or registered previously.”
- A design should not have been disclosed to the public anywhere 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. In the case of Anuradha Doval v. The Controller of Patents 2017(71) PTC 288 (Cal), it was held that “if a document is to constitute prior publication, then a reader of it possessed ordinary knowledge of the subject must from his reading of the document be able, at least, to see the design in his mind’s eye and should not have to depend on his own originally to construct the design from the ideas which the document may put into his head.
- A design should be significantly distinguishable from known designs or a combination of known designs. In the case of Britannia Industries Ltd v. Sara Lee Bakery AIR 2000 Mad 497, the designs of both the parties were adjudged from the perspective of a child. It was observed by the Court that the Plaintiff has conspicuously displayed its trademark “Britannia’ on the wrapper of its biscuit, whereas the Defendant has displayed its trademark ‘Nutrine’ and ‘Milkwala’ on the wrappers of its biscuits. “The features contained in the design and wrappers in both the products are entirely different and the differences are easily perceivable even by young consumers.”
- A design should not comprise or contain scandalous or obscene matter.