Industrial Design
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Industrial Industrial Design Design
Transcript of Industrial Design
Industrial Industrial DesignDesign
1
Evolution of CompetitionEvolution of Competition
Traditional product
Technology
Pricing of product
Quality of Product
Design differential
“When companies are competing at equal price
& functionality
Design is the only differential
that matters” – – Mark Dziersk, Mark Dziersk, quoted in quoted in
TIME MagazineTIME Magazine
What is an industrial What is an industrial DesignDesign
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
Shape and configurationShape and configuration
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 plain paper- is not an industrial design
Pattern, OrnamentPattern, Ornament
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)
Industrial DesignsIndustrial Designs
Department of IP &P coversThe Patents Act, 1970 (as amended in 2005)
The Patents Rules, 2003 (as amended in 2006)
The Designs Act, 2000The Designs Act, 2000
The Designs Rules, 2001 (as amended in 2008)The Designs Rules, 2001 (as amended in 2008)
The Trade Marks Act 1999The Trade Marks Rules 2002
The Geographical Indications of Goods (Registration & Protection) Act, 1999
The Geographical Indications of Goods (Registration & Protection) Rules, 2002,
Department of Education covers
The Copyrights Act 1957 (amended in 1999)
Legislative Framework of IP Legislative Framework of IP AdministrationAdministration
Exclusive right to apply design to the article in the class in which design is registered.
Better protection and can sue for piracy of design.
Licensing of design as legal property for consideration or royalty.
Benefits of RegistrationBenefits of Registration
Scope of definition of terms ‘Article’ & ‘Design’ enlarged
Addition of definition of the term ‘Original’
Introduction of delegation of powers to Examiners & other Officers by Controller
Codification of non- registerable Designs
Substitution of classification system (Locarno classification)
Designs Act, 2000 - Salient Features Designs Act, 2000 - Salient Features
Removal of secrecy period of two years for a registered Design
Public inspection available after notification
Rights of Registered Proprietor defined
Provision of Restoration of Lapsed Design
Electronic Register of Design
Designs Act, 2000 - Salient Features Designs Act, 2000 - Salient Features
Initial term of protection for 10 years, extendable by 5 years on request
Provision for preferring Appeal on the Controller’s order before High Court
Substitution of Applicants before registration of design
Additional grounds for Cancellation of design
Designs Act, 2000 - Salient Features Designs Act, 2000 - Salient Features
Registration of assignments/transfer of right made mandatory
Penalty for piracy of registered design enhanced
Inclusion of Paris Convention Countries apart from Commonwealth Countries for priority
Designs Act, 2000 - Salient Features Designs Act, 2000 - Salient Features
Sec 2(d) Design: Means only features of shape, configuration, pattern, ornament or compositions of lines or colours applied to applied to
any articleany article whether in two or three dimensional or both by any industrial process or means whether manual, mechanical or chemical, separate or combined,………
The Designs Act, 2000 - DefinitionsThe Designs Act, 2000 - Definitions
Sec 2(d) Design:
……… which in the finished article appeal to and judged solely by eye but does not include any mode or principle of construction and does not include any Trade Mark or Property Mark and Artistic work as defined in clause (c) of section 2 of the Copyright Act’1957.
The Designs Act, 2000 - DefinitionsThe Designs Act, 2000 - Definitions
Artistic workArtistic work means-(i) A painting, a sculpture, a drawing (diagram, map, chart or plan) or engraving or photograph……(ii) Any work of architecture and(iii) Any other work of artistic craftsmanship.
Such work is not a subject matter of an is not a subject matter of an industrial design industrial design
Sec 2 (c ) – Copyright ActSec 2 (c ) – Copyright Act
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
The Designs Act, 2000 - DefinitionsThe Designs Act, 2000 - Definitions
Sec.4 - A design which- (a) is not new or original;not new or original; or(b) has been disclosed to the public 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
(c) is not significantly distinguishablenot significantly distinguishable from,known designs or combination of known designs; or
(d )(d ) comprises or containscomprises or contains scandalous or obscene scandalous or obscene mattermatter
shall not be registered shall not be registered
Prohibition of registration of certain Prohibition of registration of certain designsdesigns
A Design should: Be New or Original Be Distinguishable from known designs Be applied to an article Not be disclosed to public in any form Appeal to eye Not comprise of obscene matter Not be contrary to public order or
morality
Requirements for RegistrationRequirements for Registration
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.
New or OriginalNew or 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)]
OriginalOriginal
When design to applied to the inner portion of the 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
What are not RegistrableWhat are not Registrable
Calendar, certificates, forms, greeting cards, leaflets, maps, building plan, medals
Mere mechanical contrivance Basic shape, variations commonly used in the
trade Mere workshop alteration Flags, emblems, or signs of any country,
computer icons
The following articles are not The following articles are not registrableregistrable
Applicant : Applicant means any individual or legal entity.
Application : One application in prescribed form for one design in one class with prescribed
fee. Representation: Four sets of Representation with the
different views of the article for clear understanding the nature of article.
Declaration :- Statement of novelty and disclaimers.
Power of Attorney : (If required).
Filing RequirementsFiling Requirements
KOLKATAH.O.
Receiving & Examination
Receiving Center Receiving CenterReceiving Center
Delhi Mumbai Chennai
Filing of Design ApplicationFiling of Design Application
Application form 1 with requisite fee of Rs. 1,000/-
Four sets of Representation sheets in durable paper of A4 size, pasted with the photographs/drawings of the article from different angles.
Power of attorney (if required)
Priority document (for convention Appln.)
Particulars required for applicationParticulars required for application
Contd …
Contd. from previous slide…
A4 Size white durable paper Sheet nos. To be mentioned in each
sheet Photographs/line diagrams/ computer
graphics of the article Name of the views Statement of novelty Disclaimer Signature of the applicant/ agent DATE
Preparation of the Representation Preparation of the Representation SheetSheet
(1) STATEMENT OF NOVELTY
(2) DISCLAIMER Signature of Applicant
Name of the ApplicantXYZ, PVT.LTD.Date :-
No. of sheet - 05Sheet No.- 01
Side view
Representation SheetRepresentation Sheet
Name of the ApplicantXYZ, PVT.LTD.
No. of sheet Sheet No.-
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 NoveltyStatement of Novelty
No claim is made by virtue of this registration to any right to the use as a trade mark of what is shown in the representations.
No claim is made by virtue of the registration in respect of 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.
Statement of Disclaimer Statement of Disclaimer
Example of RepresentationExample 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)
(SPECIMEN OF REPRESENTATION SHEETS)
(SPECIMEN OF REPRESENTATION SHEETS)
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)
RIGHT SIDE VIEW LEFT SIDE VIEW
No. of entry
On What possible Form No.
Fee (Rs.)
1 On application for registration of Design under Section 5 & 44
1 1000.00
2 On claim under Section 8(1 ) to proceed as an applicant or joint applicant
2 500.00
3 On application for extension of copyright under Section 11(2)
3 2000.00
4 On Application for Restoration of lapsed design under Section 12(2)
4 1000.00
5 Additional fee for Restoration --- 1000.00
6 Inspection of Registered design under Section 17(1)
5 500.00
7 On request for information of design when registration No. is given under Section 18.
6 500.00
8 On request for information of design when registration No. not given .
7 1000.00
THE FIRST SCHEDULE FEESTHE FIRST SCHEDULE FEES
Contd …
No. of entry
On What possible Form No.
Fee (Rs.)
9 On application for cancellation of design under Section 19
8 1500.00
10 Notice of intended exhibition or publication of an unregistered design under Section 21
9 500.00
11 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
10
500.00
200.00
12 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
11
500.00
200.00
13 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
12
500.00
200.00
(Contd. from previous slide…)THE FIRST SCHEDULE FEESTHE FIRST SCHEDULE FEES
No. of entry
On What possible Form No.
Fee (Rs.)
14 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
13
500.00
200.00
15 On request for correction of clerical error under Section 29
14 500.00
16 On request for certificate under Section 26 and Rule 42
15 500.00
17 On application for certified copy of Registered design Under Section 17(2)
16 500.00
18 On application for rectification of Register of design Under Section 31
17 500.00
19 On application for extension of time for filing priority Document under Rule 15.
18 200.00(per month)
20 On Notice of opposition under Rule 40 19 100.00
(Contd. from previous slide…)THE FIRST SCHEDULE FEESTHE FIRST SCHEDULE FEES
No. of entry
On What possible Form No.
Fee (Rs.)
21 Notice of intention to attend hearing under Rule 29 and 40
20 500.00
22 Form for authorization of agent or other person. 21 ----
23 On request to alter name or address or address for Service in the Register of design under Rule 31.
22 200.00
24 On request for entries of two addresses in the Register of Design.
23 200.00
25 On petition under Rule 46 for amendment of any document
--- 500.00
26 On petition under Rule 47 for amendment of any document
--- 500.00
27 Inspection of Register of Design under Rule 38 (in respect of each design).
--- 250.00
(Contd. from previous slide…)THE FIRST SCHEDULE FEESTHE FIRST SCHEDULE FEES
STAGES FROM FILING TO STAGES FROM FILING TO REGISTRATIONREGISTRATION
Abandoned
Examination Filling of Application
Numbering & Dating of
Application
Noncompliance of Objection (s)
Communication of Objection (s)
Removal of Objection (s)
Hearing if objection (s)
is /are contested
RefusalRefusal
Re- ExaminationAppeal to
High CourtWaiving /
removal of Objection (s)
Acceptance
In case of allowance of appeal
Notification in the Official Gazette
Issue of Certificate
Application of Design in Industries
Small Scale Industries:
Shoe, Chappal, Pen, Textile Goods, Carpet, Wall Clock, Ceramic Tiles, Plumbing Equipments, Sanitary Goods, Package, Chairs, Tables, Photo - Frame, Tiffin Box, Water Jug, Casserole, Water Bottle, Bags, Suitcase, Flower Vase, Ash-Tray, Tooth-Brush, Toy, Fan etc.
Medium Scale Industries:
Washing Machine, Refrigerator, Television, Computer, A.C. Machine, Wrist Watch, Mixer-Grinder, Vacuum Cleaner
More articlesMore articles
Textiles dress materials ,mobiles set, cycle, electrical appliances, containers , Sports goods other appliances
Consumer Products
Pharmaceutical Product
Textile & Jewellery
Shape & Configuration signify something solid Shape & Configuration signify something solid where an idea has been incorporated into the where an idea has been incorporated into the article.article.
Contd.
Example with a toothbrush
Pattern or ornament or composition of colour / Pattern or ornament or composition of colour / lines relates to something two dimensional.lines relates to something two dimensional.
Contd.
Example with a toothbrush
Contd.
When a figure, showing the feature of the design of When a figure, showing the feature of the design of an article, is drawn on a paper it will be regarded as an article, is drawn on a paper it will be regarded as if design has been applied to the article sought to be if design has been applied to the article sought to be registered. registered.
Example with a toothbrush
A new shape applied to toothbrush which A new shape applied to toothbrush which produces a new visual appearance on the produces a new visual appearance on the article.article.
Contd.
Example with a toothbrush
Design means a conception or suggestion or idea Design means a conception or suggestion or idea of a shape or pattern which can be applied to an of a shape or pattern which can be applied to an article by industrial process or means.article by industrial process or means.
Contd.
Example with a toothbrush
Any mode or principle of construction or operation Any mode or principle of construction or operation or anything which is in substance a mere or anything which is in substance a mere mechanical device, would not be registerable mechanical device, would not be registerable design.design.
Contd.
Example with a toothbrush
The features of the design in the finished article The features of the design in the finished article should appeal to and are judged solely by the should appeal to and are judged solely by the eye.eye.
Contd.
Example with a toothbrush
The design should be applied or applicable to The design should be applied or applicable to any article by any industrial process.any article by any industrial process.
Contd.
Example with a toothbrush
Designs of artistic nature like paintings, Designs of artistic nature like paintings, sculptures and the like which are not produced sculptures and the like which are not produced in bulk by any industrial process are excluded in bulk by any industrial process are excluded from registration under the Act.from registration under the Act.
Example with a toothbrush
OVERLAP OF DESIGN, COPYRIGHT & TRADE MARK
Design is for aesthetic appearance. Anything functional is not registrable as a design
Copyright in a design comes to an end if the work has industrial application and is reproduced more than 50 times
Is there diff. between copyright in a design and copyright in a drawing. Yes.
Copyright & Design
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.
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
Design
Infringement in the context of Indian Textiles, Apparels and Life Style Industry:
Indian Textiles:
If artistic patterns are drawn up on a piece of cloth to be used for any 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 piece of cloth, then the same may be protected as a design right.
If, the intention of the designer is to ensure that only one piece of 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 designer’s 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.
Infringement
Indian Cases
Tahiliani Design Private Ltd. vs. Renu Tandon & Anr. C.S. (OS) No. 2222 of 2008 – Before Hon’ble Delhi High Court
Cases
Allegation that the Defendants’ garments were copies of the garments designed and crafted by the Plaintiff
The said garments were supposed to be developed, designed and crafted by the plaintiff as a part of their collection for the year 2006
The Hon’ble Delhi High Court vide order dated 21.10.2008 granted ex-parte ad-interim injunction
Tahiliani Design Private Ltd. vs. Renu Tandon & Anr. C.S. (OS) No. 2222 of 2008 – Before Hon’ble Delhi High Court
Cases
Defendant served notice.
Application for vacation of stay moved claiming that both designs are separate.
The impugned prints are generic Jamawar Prints
Matter is sub-judice – Referred to Mediation
Tahiliani Design Private Ltd. vs. Renu Tandon & Anr. C.S. (OS) No. 2222 of 2008 – Before Hon’ble Delhi High Court
Cases
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).
Suneet Varma Design Pvt. Ltd. Vs Jas Kirat Singh Narula & Anr. [2007 (34) PTC 81 (Del)]
Cases
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
copyright in the drawings
Microfibres Inc vs. Girdhar and Co. and Ors. : 2006(32) PTC 157 (Del)
Cases
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
Microfibres Inc vs. Girdhar and Co. and Ors. : 2006(32) PTC 157 (Del)
Cases
Plaintiff claimed an injunction on the ground that his designs of shoe soles had distinctive shape and configuration
During the course of argument, it was revealed that the plaintiff himself had copied designs from Bata India Ltd.
Thus Court had held that the plaintiff himself being a pirater, no injunction can be granted in favour of the plaintiff
1997(17) PTC 268: Baldev Singh vs. Shriram Footwear
Cases
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 plaintiff’s
design was protected
Hindustan Sanitaryware & Industries Ltd. vs. Dip Crafts Industries: 2003(26) PTC163 (Del)
Cases
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
Metro Plastic Industries (Regd.) vs. M/s. Galaxy Footwear New Delhi: 2000(20) PTC 1
Cases
Suit filed alleging infringement of design in respect of a bottle which is being used by plaintiff for packing hair oil
Court found plaintiff’s 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
Dabur India Ltd. Vs. Rajesh Kumar & Ors 2008 (37) PTC 227
Cases
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
Vikas Jain Vs. Aftab Ahmad And Ors, 2008 (37) PTC 288 (Del)
Cases
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 Hon’ble Delhi High Court
Hon’ble 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
Reckitt Benckiser Australia Pty Ltd. And Anr Vs. R. B. Impex And Ors 2008 (37) PTC 262 (Del)
Cases
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
Sat Pal Singh Vs. S.P. Engineering Works - 1982(2) PTC 193
Cases
Faber Castell “Textliner”. A dark green body Unique cap of same colour as colour of
ink Gold lettering on green bodyRegd design. Prior Publication could be through prior documents or some other prior user.Injunction granted
Faber Castell Vs. Pikpen - 2003 PTC 538
Cases
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
manufactured industrially more
than 50 times.
Samsonite Vs. Vijay Sales 1998 PTC 372
Cases
Design of photo-frames
Registered design
Defendant no.2 was an employee of
plaintiff
Injunction granted protecting the
copyright in the design of photo-
frames
Preeti Gupta Vs. Rajendra Prahladkar 2002 PTC 64
Cases
International Cases
RADELY GOWNS Ltd. v COSTAS SPYROU and BROKE v SPINCERS DRESS DESIGN Ltd.(1975) FSR 455
Plaintiff & defendant manufacture ladies clothing.
Copyright claimed in 3 stages of Manufacturing Procedure viz.,
- design sketches,
- cutting patterns
- prototype garments
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
RADELY GOWNS Ltd. v COSTAS SPYROU and BROKE v SPINCERS DRESS DESIGN Ltd.(1975) FSR 455
BRIGID FOLEY Ltd. v ELLOT (1982) RPC 433
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.
BERNSTEIN v SYDNEY MURRAY(1981) RPC 303
The plaintiffs were owners of 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 plaintiff’s 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 plaintiff’s 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 plaintiff’s 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.
In MERLET v MOTHERCARE Ltd (1986) RPC 115
The plaintiff made a prototype baby cape for her child.
The cape was subsequently manufactured by the second plaintiff.
The defendants copied the plaintiff’s 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.
It was held that though the prototype 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.
In MERLET v MOTHERCARE Ltd (1986) RPC 115
KOMESAROFF v MICKLE (1988) RPC 204
A product called (moving sand 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
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.)
Cases
Ford Motor Co.1993 RPC 399
Vehicle parts are not subject matter of design because’ they have no
value in commerce except as part of a vehicle
Mirrors, seats, etc., were capable of registration as substitution was
possible without affecting shape of the vehicle.
The distinction that seems to have been drawn is that there are several
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
George Hensher Ltd s. Restawile Upholstery 1975 RPC 31
Upholstered chairs & settees. One prototype was evolved – chairs were copied from it and sold Def. copied the chairs and hence the prototype Trial Court granted injunction. Appeal court dismissed the
injunction. HL refused protection
George Hensher Ltd s. Restawile Upholstery 1975 RPC 31
Artistic craftsmanship need not necessarily mean “work of art”. The product may be a commercial success but need not be of
Art craftsmanship
Merchandising Corpn Vs. Harpbond 1983 FSR 32
Adam from the pop group Adam & 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 portrait & superimposed new look over an old poster
In infringement action court held that this is not a painting and hence not protectable.
Animal Fair Inc., Vs. Amfesco Inds227 USPQ 817 (1985)
Novelty slippers Resembles a bear’s foot or paw Slipper’s 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.
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.
ConclusionConclusion
