In this era of globalization and increasing competitiveness, the success of an enterprise depends upon its ability to innovate its product or service with an aim to distinguish or differentiate itself from its competitors. Consumer preference is one of the important factors influencing the demand for a good with substitutes in the market. And consumers often choose a product on the basis of its visual appeal. And to make a product appealing and attractive, enterprises design their products or its packaging using different shapes, patterns, lines colours, configuration etc.
It is in this respect that industrial design has earned its place in a product’s value chain. Legally speaking, an industrial design constitutes the ornamental or aesthetic aspect of an article. Practically, for an enterprise to be able to successfully capitalize on such design, it becomes imperative that such design is not used by any other enterprise and that such design is identified exclusively with the owner of the design. Coco Cola’s contour bottle, edge of Belgravia Knife, iPhone/iPad/iPod, are all well knows industrial designs. Thus, it is important to have a legal framework to protect the design by giving certain exclusive rights to the owner as well as prevent other enterprises from capitalizing or using the design.
Industrial designs are applied to a variety of products of industrial and handicraft items including packages and containers, household goods, jewellery, and electronic devices. Industrial designs may also be relevant to graphic symbols, graphical user interfaces, and logos.
In most countries, an industrial design needs to be registered in order to be protected under industrial design law as a ‘registered design’. In some countries, industrial designs are protected under patent law as ‘design patents’. Some countries grant protection without registration, which may be time or scope limited, to so-called ‘unregistered industrial designs’, while others protect them as works of art under copyright law.
Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreements sets minimum standards of protection for industrial designs. India has enacted the Design Act, 2000, whereby Industrial Design Protection is considered as a type of intellectual property right that gives the exclusive right to make, sell, and use articles that embody the protected design. These exclusive rights are provided for a period of 10 years on registration and may be renewed once for an additional period of 5 years. Grant of Industrial design protection in India depends on the fulfilment of certain pre-requisites:
- Novelty and originality of the design
- Visibility on a finished article
- Non obviousness
- Applicability to a finished article
- Non-existence of prior publication or disclosure of the design
Industrial design protection may be availed by applying and completing the registration process through the Design office. The application maybe submitted to the Design office with the intended design, classification code and a description of the same. The application may be granted, modified or rejected as the case maybe. The protection offered by industrial design laws is prevented from being ubiquitous due to factors like lack of awareness, tendency to avoid legal hassles, informal markets etc.
However, protection of industrial design has become vital to prevent other enterprises from misusing designs of other enterprises. It also encourages creativity, especially in a time where aesthetics and appeal of a product contributes significantly to the marketability of a product. Other impetus needed to protect industrial design include return on investments, exclusive rights, strengthening of brand, opportunity to licence or sell, construction of a positive image in the industry, and other rewards to creativity and effort.
India is one of the fastest growing economies in the world and India’s current legislation is well equipped to keep up with the rapid changes in technology and other international developments, provided the legislation is implemented efficiently and effectively.