GI & Designs - Where Creativity Finds its Place

After Copyright, Patent and Trademark next comes, The Industrial Design and Geographical Indication. If you haven’t read our previous blogs of IPR series till now, you can read those by just clicking on concerned topics.

This blog will be composed of two topics

A] Industrial Design

B] Geographical Indication

A] INDUSTRIAL DESIGN

An industrial design refers to the ornamental or aesthetic aspects of an object. A design may consist of three-dimensional features like the shape or surface of an article, or two-dimensional features like patterns, lines, or colour.

Let me give you some examples-

Industrial designs are applied to a wide range of consumer products and crafts: from scientific and medical instruments to watches, jewellery, and other luxury items; from household goods and electrical appliances to automobiles and architectural structures; from clothing designs to recreational items.

Ever wondered, why every designer owner looks for a unique design or pattern? Well, according to the law-

An industrial design must be new or original and non-functional, in order to be covered by most national laws. This means an industrial design is essentially decorative in nature, and the design registration does not cover the technical features of the article to which it is applied. Nonetheless, a patent could cover those features.

Section 2 (d) of The Designs Act, 2000 defines: “Design” means 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 trade mark 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).”

In one of the famous cases- Bharat Glass Tube Ltd. v. Gopal Glass Works Ltd., 2008 (10) SCC 657: 2008 (7) SCR 397), the Supreme Court explained that “Design” means a feature or pattern that is registered with the registrant authority for being produced by any industrial process on a -particular article, whether manual, mechanical or chemical, or by any other means that appears in a finished article and can be judged solely by eye appeal.

Why are industrial designs protected?

Industrial Design is what makes the article attractive and attractive and therefore adds to the commercial value of the product and increases its marketability. Where an industrial design is protected, the owner – the person or entity that has registered the design – shall enjoy the exclusive right and protection against unauthorized copying or imitation of the design by third parties. This helps to ensure fair returns on investment. The efficient system of protection also benefits consumers and the general public, by promoting fair competition and fair-trade practices, by encouraging creativity and by promoting products that are more aesthetically pleasing.

The protection of industrial designs contributes to economic development by fostering creativity in the industrial and manufacturing sectors, as well as in traditional arts and crafts. Design contributes to the expansion of commercial activities and to the export of national products. An Industrial design can be relatively easy and cost-effective to develop and protect. They are reasonably accessible to small and medium-sized enterprises and to individual artists and craftsmen in both developed and developing countries.

How could industrial designs be protected?

In most countries, industrial designs must be registered in order to be protected by industrial design law. To be registered, the design must be "new" or "original." Countries have different definitions of these terms as well as variations in the registration process itself. Generally speaking, "new" means that no identical or very similar design is known to have existed. Once a design is registered, a certificate of registration shall be issued. Subsequently, the period of protection granted is generally five years, with the possibility of further renewal, in most cases for a period of up to 15 years.

In India such is protected under Designs Act, 2000. However, this protection does not include –

· The mode of principle of construction

· Anything which is in substance a mere mechanical device

· Trademark or property mark

This registration has a specific term (initially 10 years and renewable for another term of 10 years.) If it is not periodically renewed as required by the statute the registered design becomes public property that can be freely used by anyone without fear of infringement.

In certain circumstances, industrial design may also be protected under unfair competition law, although the conditions of protection and the rights and remedies available may vary considerably.

How extensive is the protection of industrial design?

In general, the protection of industrial design is limited to the country in which protection is granted. The Hague Agreement on the International Registration of Industrial Designs, a treaty administered by the WIPO, lays down procedures for the international registration of designs.

Applicants may submit a single international application to the WIPO or the national or regional office of the country party to the Treaty. The design will then be protected in as many Member States of the Treaty as the applicant has designated.

B] GEOGRAPHICAL INDICATION

A geographical indication is a sign used for goods of a specific geographical origin which have the characteristics or reputation of that place of origin. The most common geographical indication shall be the name of the place of origin of the goods.

Many of you speak about Nagpur’s Oranges, Ratnagiri’s Mangoes and many prominent places originated products. Agricultural products typically have characteristics that derive from their place of production and are influenced by specific local geographical factors, such as climate and soil. It is a matter of national law and the consumer's perception that a sign acts as a geographical indication. Geographical indications may be used for a wide range of agricultural products, such as, for example, “Tuscany” for olive oil produced in a specific area of Italy, or “Roquefort” for cheese produced in that region of France.

The application of geographical indications shall not be confined to agricultural products. They may also highlight the specific characteristics of the product as a result of human factors identified at the place of origin of the product, such as specific manufacturing skills and traditions. The place of origin may be a town or village, a region or a land. An example of the latter is “Switzerland” or “Swiss”, perceived as a geographical indication in many countries for products made in Switzerland and, in particular, for watches.

What is an appellation of origin?

The appellation of origin is a specific type of geographical indication used for products of a specific quality solely or essentially based on the geographical environment in which the products are produced. The term geographical indication refers to the name of origin. Examples of appellations of origin protected in the States Parties to the Lisbon Agreement for the Protection of Origin Appellations and their International Registration are 'Bordeaux' for wine produced in the Bordeaux region of France, 'Prosciutto di Parma' – or 'Parma ham' – for ham produced in the Parma province of Italy or 'Habana' for tobacco grown in the Havana region of Cuba.

Why there is a need to protect GI?

The geographical indications are understood by consumers to indicate the origin and quality of the products concerned. Many of them have acquired valuable reputations which, if not properly protected, could be distorted by commercial operators. False use of geographical indications by unauthorized parties; Example 'Darjeeling' for tea not grown in Darjeeling tea gardens is detrimental to consumers and legitimate producers.

The former are deceived by the belief that they are buying a genuine product with specific qualities and characteristics, and the latter is deprived of valuable business and suffer damage to the established reputation of their products.

What is a “generic” geographical indication?

If the name of the place is used to indicate a particular type of product, rather than to indicate its place of origin, the term no longer functions as a geographical indication. For example, "Dijon mustard," a type of mustard that originated in the French town of Dijon many years ago, has come over time to denote mustard of that kind made in many places. As a result, "Dijon mustard" is now a generic indication and refers to a type of product rather than a place.

How are GI’s protected?

Geographical indications shall be protected in accordance with national legislation and in accordance with a wide range of concepts, such as the law on unfair competition, the law on consumer protection, the law on the protection of certification marks or the special law on the protection of geographical indications or designations of origin.

In essence, unauthorized parties may not use geographical indications if the use is likely to mislead the public as to the true origin of the product. Applicable sanctions range from court injunctions preventing unauthorized use of damages and fines or, in serious cases, imprisonment.

Significant role of the WIPO in protecting geographical indications

WIPO manages a number of international agreements which cover, in whole or in part, the protection of geographical indications (in particular the Paris Convention and the Lisbon Agreement). WIPO meetings provide an opportunity for Member States and other stakeholders to explore new ways of improving international protection of geographical indications.

So next time you think of creating your Industrial Design or Geographical Indications, make sure you be careful about all these areas.