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Industrial Design

Evolution of Competition

Tr aditional product

Te chnolo gy

Pricin g o f p roduct

Qu alit y o f P ro duct

Desig n d iffe re ntia l


1
“When companies are competing
at equal price
&
functionality
Design is the only differential
that matters”
– Mark Dziersk, quoted in
TIME Magazine
What is an industrial Design

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
Shape and configuration

It signifies something solid (in


three dimensions) where an
idea is incorporated into the
article

Example - feeding bottle


Pattern, Ornament

 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
Industrial Designs
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)
Legislative Framework of IP
Administration
Department of IP &P covers
The Patents Act, 1970 (as amended in 2005)
 The Patents Rules, 2003 (as amended in 2006)

The Designs Act, 2000


 The Designs Rules, 2001 (as amended in 2008)

The Trade Marks Act 1999


 The 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)
Benefits of Registration

 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.
Designs Act, 2000 - Salient Features

 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

 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

 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

 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
The Designs Act, 2000 - Definitions

Sec 2(d) Design:


Means only features of shape,
configuration, pattern, ornament or
compositions of lines or colours applied to
any 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 - 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.
Sec 2 (c ) – Copyright Act

Artistic 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


industrial design
The Designs Act, 2000 - Definitions

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
Prohibition of registration of certain designs

Sec.4 - A design which-


(a) is not new or original; or
(b) 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
• is not significantly distinguishable
from,known designs or combination of
known designs; or
(d ) comprises or contains scandalous or
Requirements for Registration

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
New or Original

 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.
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)]
What are not Registrable
 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
The following articles 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
Filing Requirements

 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 of Design Application

KOLKATA Receiving & Examination


H.O.

Delhi Mumbai Chennai

Receiving Center Receiving Center Receiving Center


Particulars required for 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.)


Contd …
Contd. from previous slide…
Preparation of the Representation Sheet

 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
Representation Sheet
Name of the Applicant No. of sheet -
XYZ, PVT.LTD. 05
Date :- Sheet No.- 01

Side view

STATEMENT OF NOVELTY
DISCLAIMER
Signature of App
Name of the Applicant No. of sheet
XYZ, PVT.LTD. Sheet No.-
Statement of Novelty

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 Disclaimer
 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.
Example of Representation
(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)
(SPECIMEN OF REPRESENTATION
SHEETS)

RIGHT SIDE VIEW LEFT SIDE VIEW


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)
THE FIRST SCHEDULE FEES
No. of On What possible Form Fee (Rs.)
entry No.
1 On application for registration of Design under  1 1000.00
Section 5 & 44
2 On claim under Section 8(1 ) to proceed as an  2 500.00
applicant or joint applicant
3 On application for extension of copyright under  3 2000.00
Section 11(2)
4 On Application for Restoration of lapsed design  4 1000.00
under Section 12(2)
5 Additional fee for Restoration --- 1000.00

6 Inspection of Registered design under Section  5 500.00
17(1)
7 On request for information of design when  6 500.00
registration No. is given under Section 18.
8 On request for information of design when  7 1000.00
registration No. not given .
Contd …
THE FIRST SCHEDULE FEES (Contd. from previous slide…)

No. of On What possible Form Fee (Rs.)


entry No.
9 On application for cancellation of design under  8 1500.00
Section 19
10 Notice of intended exhibition or publication of an  9 500.00
unregistered design under Section 21
11 Application for registration of a document in  10
Register of Designs under Section 30(3): 500.00
(i) In respect of one Design; 200.00
(ii) For each additional Design
12 One application for entry of name of proprietor or  11
part proprietor in Register of Designs under Section 
30:
500.00
(i) In respect of one Design;
200.00
(ii) For each additional Design
13 On application for entry of mortgage or license in  12
Register of designs under Section 30:
(i) In respect of one Design; 500.00
(ii) For each additional Design
200.00
THE FIRST SCHEDULE FEES (Contd. from previous slide…)

No. of On What possible Form Fee (Rs.)


entry No.
14 Application for entry of notification of a document in  13
the Register of designs under Section 30 and Rule 
37: 
500.00
(i) In respect of one Design;
200.00
(ii) For each additional Design
15 On request for correction of clerical error under  14 500.00
Section 29
16 On request for certificate under Section 26 and  15 500.00
Rule 42
17 On application for certified copy of Registered  16 500.00
design Under Section 17(2)
18 On application for rectification of Register of  17 500.00
design Under Section 31
19 On application for extension of time for filing  18 200.00
priority Document under Rule 15. (per month)

20 On Notice of opposition under Rule 40 19 100.00
THE FIRST SCHEDULE FEES (Contd. from previous slide…)

No. of On What possible Form Fee (Rs.)


entry No.
21 Notice of intention to attend hearing under Rule  20 500.00
29 and 40
22 Form for authorization of agent or other person. 21 ­­­­

23 On request to alter name or address or address  22 200.00
for Service in the Register of design under Rule 
31.
24 On request for entries of two addresses in the  23 200.00
Register of Design.
25 On petition under Rule 46 for amendment of any  --- 500.00
document
26 On petition under Rule 47 for amendment of any  --- 500.00
document
27 Inspection of Register of Design under Rule 38 (in  --- 250.00
respect of each design).
STAGES FROM FILING TO
REGISTRATION
Numbering & 
Filling of  Dating of  Examination 
Application Application
Noncompliance  Communication 
Abandoned of Objection (s) of Objection (s)

Hearing if  Removal of 
Refusal objection (s) is  Objection (s)
/are contested
Re­ Examination
Appeal to  Waiving / 
High Court removal of  Acceptance
Objection (s)

Notification in the 
In case of allowance 
Official Gazette
of appeal

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 articles

 Textiles dress materials


 ,mobiles set,
 cycle,
 electrical appliances,
 containers ,
 Sports goods
 other appliances
Consumer Products
Pharmaceutical Product
Textile & Jewellery
Example with a toothbrush
Shape & Configuration signify something solid
where an idea has been incorporated into the
article.

Contd.
Example with a toothbrush
Pattern or ornament or composition of colour /
lines relates to something two dimensional.

Contd.
Example with a toothbrush
When a figure, showing the feature of the design of
an article, is drawn on a paper it will be regarded as
if design has been applied to the article sought to be
registered.

Contd.
Example with a toothbrush
A new shape applied to toothbrush which
produces a new visual appearance on the
article.

Contd.
Example with a toothbrush
Design means a conception or suggestion or idea
of a shape or pattern which can be applied to an
article by industrial process or means.

Contd.
Example with a toothbrush
Any mode or principle of construction or operation
or anything which is in substance a mere
mechanical device, would not be registerable
design.

Contd.
Example with a toothbrush

The features of the design in the finished article


should appeal to and are judged solely by the
eye.

Contd.
Example with a toothbrush

The design should be applied or applicable to


any article by any industrial process.

Contd.
Example with a toothbrush

Designs of artistic nature like paintings,


sculptures and the like which are not produced
in bulk by any industrial process are excluded
from registration under the Act.
OVERLAP OF DESIGN,
COPYRIGHT & TRADE MARK
Copyright & Design

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.
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.
Design

 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
Infringement
 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.
Indian Cases
Cases
Tahiliani Design Private Ltd. vs. Renu Tandon & Anr.
C.S. (OS) No. 2222 of 2008 – Before Hon’ble Delhi High Court
Cases
Tahiliani Design Private Ltd. vs. Renu Tandon & Anr.
C.S. (OS) No. 2222 of 2008 – Before Hon’ble Delhi High Court

 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
Cases
Tahiliani Design Private Ltd. vs. Renu Tandon & Anr.
C.S. (OS) No. 2222 of 2008 – Before Hon’ble Delhi High Court

 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


Cases
Suneet Varma Design Pvt. Ltd. Vs Jas Kirat Singh Narula &
Anr. [2007 (34) PTC 81 (Del)]

 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).
Cases
Microfibres Inc vs. Girdhar and Co. and Ors. : 2006(32)
PTC 157 (Del)

 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
Cases
Microfibres Inc vs. Girdhar and Co. and Ors. : 2006(32)
PTC 157 (Del)
 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
Cases
1997(17) PTC 268: Baldev Singh vs. Shriram Footwear

 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
Cases
Hindustan Sanitaryware & Industries Ltd. vs. Dip Crafts
Industries: 2003(26) PTC163 (Del)

 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
Cases
Metro Plastic Industries (Regd.) vs. M/s. Galaxy Footwear
New Delhi: 2000(20) PTC 1

 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
Cases
Dabur India Ltd. Vs. Rajesh Kumar & Ors 2008 (37) PTC 227

 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
Cases
Vikas Jain Vs. Aftab Ahmad And Ors, 2008 (37) PTC 288 (Del)

 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
Cases
Reckitt Benckiser Australia Pty Ltd. And Anr Vs. R. B.
Impex And Ors 2008 (37) PTC 262 (Del)

 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
Cases
Sat Pal Singh Vs. S.P. Engineering Works - 1982(2) PTC 193

 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
Cases
Faber Castell Vs. Pikpen - 2003 PTC 538

 Faber Castell “Textliner”.


 A dark green body
 Unique cap of same colour as colour of
ink
 Gold lettering on green body
Regd design.
Prior Publication could be through prior
documents or some other prior user.
Injunction granted
Cases
Samsonite Vs. Vijay Sales 1998 PTC 372

 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.
Cases
Preeti Gupta Vs. Rajendra Prahladkar 2002 PTC 64

 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
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
RADELY GOWNS Ltd. v COSTAS SPYROU and BROKE v
SPINCERS DRESS DESIGN Ltd.(1975) FSR 455

 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
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.
In MERLET v MOTHERCARE Ltd
(1986) RPC 115
 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.
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
Cases

 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.)
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 Inds
227 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.
Conclusion

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.