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Intellectual Property Rights Design

Intellectual Property Rights Design

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Published by: Maverick Priyanka Sethi on Aug 02, 2011
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05/11/2014

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BY: Deepa B Shivangini B Bhavna Neeraj Softy S Sitara Neha Girish Arjun Megha Trisha S

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The law of designs has a long history dating back to the latter part of the 18th century. Originally introduced to protect the designing and printing of linens and cottons, design law has been extended over the 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 was the Designing & Printing of Linen Act in 1787. This gave a very limited copyright protection to those who engaged in the "arts of designing and printing linens, cottons, calicos and muslin". It gave proprietors the sole right of printing and reprinting for 2 months from the date of first publication, provided the name of the proprietor was marked on each piece. In 1794 the period of protection was extended to 3 months.

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The introduction of registration
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From 1839 a series of laws were passed, gradually extending the boundaries of design protection. The Copyright and Design Act 1839 considerably increased the protection given to fabrics by extending the law to fabrics composed of wool, silk or hair and to mixed fabrics. The same Act extended protection far beyond the textile trade and gave us the foundations of modern design law. It gave protection to every new or original design including textiles. It also allowed protection for the ornamentation and for the shape and configuration of any article of manufacture. This Act introduced a system of registration. A Registrar was appointed by the Board of Trade and unless a design was registered before it had been published, the benefits of the Act could not be obtained. The Design Act 1842 consolidated all earlier Acts and further increased the remedies for infringement. It also divided the possible articles of manufacture and substances into classes. In 1843 this was amended to extend protection of the Act to designs composed of functional features. This meant that designs such as springs for a bicycle, an oil can and gas pilot light were then capable of registration.

The act was amended further on 9 December 2001 to incorporate the European Designs Directive. In 1883 a single consolidating and amending Act was passed embracing Designs. Patents and Trade Marks (which had also joined the Patent Office). The most important alterations in the law was the amendment of the definition of design and the abolition of classification. The Registered Designs Act 1949 is still in force today but as amended by the Copyright. In 1949 registered designs were once more separated entirely from patents and the law relating to registered designs was governed by the Registered Design Act 1949. From 1911-49 design registration was governed by the designs portion of the Patents & Designs Acts 1907-1946. . Future amendments and changes will be necessary to reflect the growing and changing needs of design protection.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. Designs and Patents Act of 1988. both of which materially affected the validity as well as the scope of many registered designs.

the shape.What is a design? € The appearance of a product. in particular. the overall impression of the product should be different from any existing design. colour. contours and ornamentation. . materials used. € To qualify as a new design. texture.

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or in both forms. ornament. . 1911 was repealed by this act) now defines "design" to mean only the features of shape. whether in two or three dimensional. separate or combined. but does not include any mode or principle of construction. by any industrial process or means. (earlier Patent and Design Act. 2000 was enacted to consolidate and amend the law relating to protection of design and to comply with the articles 25 and 26 of TRIPS agreement. or composition of lines or colours applied to any article. configuration. The new act. pattern. which in the finished article appeal to and are judged solely by the eye. whether manual or mechanical or chemical.€ India's Design Act.

while international law governs affairs between sovereign states in activities ranging from trade to environmental regulation or military action. usually enforced through a set of institutions. while tort law allows claims for compensation if a person's rights or property are harmed. economics and society in numerous ways and serves as a social mediator of relations between people. . If the harm is criminalized in a statute. Contract law regulates everything from buying a bus ticket to trading on derivatives markets.€ 1. Constitutional law provides a framework for the creation of law. the protection of human rights and the election of political representatives. criminal law offers means by which the state can prosecute the perpetrator. Law: Law is a system of rules and guidelines. Trust law applies to assets held for investment and financial security. Administrative law is used to review the decisions of government agencies. Property law defines rights and obligations related to the transfer and title of personal and real property. It shapes politics.

trademarks. geographical indications. It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994. to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare. patents. and dispute resolution procedures. producers of sound recordings and broadcasting organizations. industrial designs. including the rights of performers. . integrated circuit layout-designs. TRIPS also specifies enforcement procedures. trade dress. and to a balance of rights and obligations. monopolies for the developers of new plant varieties. TRIPS: € The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members.2. including appellations of origin. Specifically. and undisclosed or confidential information. remedies. Protection and enforcement of all intellectual property rights shall meet the objectives to contribute to the promotion of technological innovation and to the transfer and dissemination of technology. TRIPS contains requirements that nations' laws must meet for copyright rights.

or annul is used in parliamentary procedure to cancel or countermand an action or order previously adopted by the assembly. such as one from the 19th century against bathing. Repeal: € A repeal is the removal or reversal of a law. If a campaign for the repeal of a particular law gains particular moment. such as century-old laws against dancing or cabarets. This is generally done when a law is no longer effective. Some repeals are of extremely old and outdated laws that now seem bizarre. repeal.3. The motion to rescind. € € . or it is shown that a law is having far more negative consequences than were originally envisioned. an advocate of the repeal might become known as a "repealer". This happened in 19th century Britain to a group in favor of the re-separation of Ireland from the United Kingdom Many repeals are the result of changes in society. such as the old Jim Crow laws or blue laws. Other repeals are for more mundane things.

€ Design right allows you to stop anyone from copying the shape or configuration of the product. € Design rights can also be bought.Design Rights € Design right gives you automatic protection for the internal or external shape or configuration of an original design. € 2-dimensional designs can be protected using copyright. . but does not give you protection for any of the 2-dimensional aspects. sold or licensed in a similar manner to copyright. for example patterns.

€ Who owns the design right? Typically the creator of the design owns any rights on it. except where the work was commissioned or created during the course of employment. . in which case the rights belong to the employer or party that commissioned the work.

2000 was enacted to consolidate and amend the law relating to protection of design. or in both forms.India's Design Act. separate or combined. or composition of lines or colours applied to any article. which in the finished article appeal to and are judged solely by the eye. configuration. whether in two or three dimensional. . by any industrial process or means. pattern. It defines "design" to mean only the features of shape. whether manual or mechanical or chemical. ornament. but does not include any mode or principle of construction.

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

€ An industrial design right is an intellectual property right that protects the visual design of objects that are not purely utilitarian. industrial commodity or handicraft. € € . configuration or composition of pattern or colour. An industrial design consists of the creation of a shape. or combination of pattern and color in three dimensional form containing aesthetic value. An industrial design can be two or three dimensional patterns used to produce a product.

There are two types of design rights: The registered design right (Registered Design Act 1949) The unregistered design right. € € € . Design right prevents deliberate copying.€ Design right is a intellectual property right in British law.

It subsists if the design is recorded on paper. It has rules on qualification for protection by both citizenship of the designer and place of the designing. It was introduced into British law by the Copyright. However. Qualifying countries include the United Kingdom. or if an article has been made according to that design. since it only lasts for 15 years. Design and Patent Act 1988 (the 1988 Act). It does not subsist in designs made before the commencement of part of the 1988 Act relevant to design right. the rest of the European Economic Area and British overseas territories. its length is much more limited.The unregistered design right is similar to copyright in that it subsists automatically when a new design is created. Design right protects the shape of a three dimensional design. .

.Design right does not subsist in parts of a design necessary to connect to another article. to methods and principles of construction or to those parts of a design which are dependent on the appearance of another article. to surface decoration. where that article and the article that design right applies to is an integral part of the second article. and a design is defined as not being original if the object so designed is commonplace in the field when designed. Design right also does not apply if a design is not original.

The amount sought can be tripled according to US law. Damages.Patent owners have civil law remedies to protect their patent. Patent owners can also seek attorney's fees. including damages for profits lost because another product was sold. A patent owner places the patent because they wish to have complete rights over an invention or process. The person or company might owe the patent owner any profits made from the design. however the patent owner can not seek those damages twice. ‡Patent Design If a person or company duplicates a design that is patented. . so having a recourse when a patented invention is used by another person or company for financial or other gain is important. can be awarded by the courts. ‡Selling a Patented Item Patent holders have options to seek remedy when someone else sells a patented item. The patent owner may also seek remedies like those for selling a patented product including damages. the patent owner can seek retributive actions.

the person suing and the government split the damages. The offender faces a fine of up to $500 for every offense. or a product made for the United States infringes on a patent. Any person may also sue for damages. the United States government seeks damages. In that case. The patent holder can sue the government for damages. . remedy may also be sought by the patent holder.‡False Advertisements Falsely claiming an item is patented or that a patent is pending is against the law. ‡State Offenses In the event that the United States government infringes on a patent. The owner can also sue for attorney fees and the costs of taking the offense to court. In that case.

in particular in regard to any cost. Members may provide that such protection shall not extend to designs dictated essentially by technical or functional considerations.Article 25: Requirements for Protection € € Article 25.TRIPS AGREEMENT. Members may provide that designs are not new or original if they do not significantly differ from known designs or combinations of known design features.Section 4 . examination or publication. Members are free to meet this obligation through industrial design law or through copyright law. Article 25.2 contains a special provision aimed at taking into account the short life cycle and sheer number of new designs in the textile sector: requirements for securing protection of such designs. must not unreasonably impair the opportunity to seek and obtain such protection. .1 of the TRIPS Agreement obliges Members to provide for the protection of independently created industrial designs that are new or original.

€ € . of the protected design.Section 4 . provided that such exceptions do not unreasonably conflict with the normal exploitation of protected industrial designs and do not unreasonably prejudice the legitimate interests of the owner of the protected design. two periods of five years.3). The wording ³amount to´ allows the term to be divided into.Article 26: Protection € Article 26. for example. Article 26.1 requires Members to grant the owner of a protected industrial design the right to prevent third parties not having the owner's consent from making. taking account of the legitimate interests of third parties. when such acts are undertaken for commercial purposes.TRIPS AGREEMENT.2 allows Members to provide limited exceptions to the protection of industrial designs. selling or importing articles bearing or embodying a design which is a copy. or substantially a copy. The duration of protection available shall amount to at least 10 years (Article 26.

CASE STUDY International Seaway Trading Corp. v. Walgreens Corp .

patent infringement was to be judged solely by the ³ordinary observer´ test € Design .€ International Seaway Trading Corp. argued that the that the so-called ³point of novelty´ test was no longer valid in determining design patent infringement.

S. § 102 in view of U. The district court granted the defendants summary judgment based on invalidity of these three patents (including the µ263 patent) as anticipated under 35 U.€ In International Seaway Trading. D529.C.S. Design Patent No. D517.S. three design patents relating to shoe designs for ³casual.263 (³the µ263 patent´) which became the focus of the opinion in International Seaway Trading. € € . lightweight footwear´ (typically referred to as ³clogs´) were alleged to be infringed. Design Patent No.798 (³the Crocs µ789 patent´). One of these three design patents was U.

2 of the µ263 patent to FIG.€ In determining that the µ263 patent was anticipated. 1 of the Crocs µ789 patent) suggests why the district court reached the conclusion that the µ263 patent was anticipated by the Crocs¶ 789 patent €A . comparison of the side profiles only of the exterior of the shoe design (FIG. the district court applied only the ³ordinary observer´ test in comparing the shoe design in the µ263 patent to that of the Crocs µ789 patent.

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€ But the district court also concluded that a comparison of the insoles of these shoe designs was unnecessary because those portions of the shoe design would invisible during normal use ³regardless of whether those portions are visible during the point of sale. arguing that the district court should have also applied the ³point of novelty´ test € .´ The design patentee (Seaway) appealed the grant of summary judgment.

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as well as iOSrelated trademarks and trade dress. . hardware. The company claimed that Samsung's Galaxy-series of Android-based smartphones and tablets infringe on Apple's iOS-related software. and even copied the iPhone trade dress down to its box design.€ Apple targeted Samsung with a major lawsuit on April 18. In addition to claiming Samsung copied the iPhone's physical design. Apple noted that the TouchWiz interface violated design patents and trademarks. and design patents.

" € . Japan. Samsung filed three separate patent infringement lawsuits in South Korea. and Germany. Samsung implied that Apple was trying to bully a successful competitor Samsung's US lawsuit targets the iPhone.€ Days later. which allegedly violates 10 Samsung patents that "relate to fundamental innovations that increase mobile device reliability. and quality. and improve user interface in mobile handsets and other products. Those lawsuits allege that Apple's iPhone uses Samsung intellectual property to connect to and improve communications with cell towers. efficiency.

. some punitive damages. and the cost of Apple¶s attorney¶s fees. any wrongful profits Samsung might have gained from using Apple¶s IP. money for corrective advertising. as well as triple damages for patent infringement. Apple¶s asking the court to permanently forbid Samsung and its various divisions and suppliers from ever infringing Apple¶s claimed IP again.€ Apple wants Samsung to pay up for the infringements in the past and stop infringing in the future. Specifically.

€ Samsung is content on releasing more Android tablets despite that pending legal spat with Apple. Samsung¶s J. which is accusing them of stealing the iPad¶s and iPhone¶s design. When asked to comment on that pending lawsuit with Apple. software features and hardware engineering with the Galaxy-branded tablets and smart phones. Shin responded ³We didn¶t copy Apple¶s design. We have used many similar designs over the past years and it [Apple's allegation] will not be legally problematic.K.´ € .

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