The TRIPS agreement is one of (if not the most) comprehensive international agreements regarding the protection of intellectual property rights. It covers not only the well-known types of intellectual property such as copyright and related acts, trademarks and service marks, patents and geographical indications but also less well-known types such as industrial designs and undisclosed information such as trade secrets and test data. Industrial designs are protected in India as well, under the Designs Act, 2000. However, the definition of a design under the Act is likely to confuse a lay person. Thus, it is necessary to be clear on this.
Designs: Definition and Differentiation
A design is defined under §2(d) of Designs Act. The salient features of a design under this provision are:
It may be in 2D or in 3D or in both forms;
It was created by any industrial process (whether manual, mechanical, chemical, separate or combined) and the end product is appealing to and intended to be judged solely by the eyes;
It does not include any principle or mode of construction, or anything which is substantially a mere mechanical device;
It does not include any trademark as defined in the Trade Marks Act, nor any artistic work as defined in the Copyright Act.
The exclusion of artistic works from the Designs Act’s protection was the result of the amendment that gave us the Designs Act, 2000, but why was this done? These points found in §2(d) indirectly illustrate the major difference between industrial designs and artistic works. The very nature of an industrial process is such that the finished product is much easier to replicate than an actual work of art. For example, in order to manufacture the Coca-Cola contour bottle, all that would be needed is knowledge of the industrial process, access to any specialized machinery required and the labour to operate them. By contrast, it is much harder to create a replica of the Mona Lisa that could pass off as authentic. It is for this reason that industrial designs require different means of protection. There is one landmark case that went into the issue of differentiation between industrial designs and copyright in detail.
Microfibers Inc. v. Girdhar & Co. & Anr. [2006 (32) PTC 157 (Del)]
In this case, the plaintiff was in the upholstery business. They made fabrics with designs derived from original and separate artistic work that was either drawn or conceptualized by their employees, or the copyright of which was assigned to the plaintiff by the original artists. The defendants began to create upholstery fabrics with designs that were extremely reflective of the fabrics manufactured by the plaintiffs. This led the plaintiff to file a case against them for infringement of copyright in the Delhi High Court. The Single Judge found in favour of the defendants on this matter for two reasons. First, the fabric designs could not stand on their own as works of art. Second, the designs were created with the object to use them for industrial purposes. Both of these points led the Judge to consider the fabric designs as industrial designs rather than standalone works of art, and since the plaintiff had not registered the designs under the Designs Act, he was not entitled to seek protection under either the Copyright Act or the Designs Act.
The Microfibers Inc. case and its affirmation in a subsequent appeal accurately highlight the differences between an industrial design and a work of art for the purposes of copyright. Since both of these types of intellectual property require different kinds and degrees of protection, it is extremely important for case law precedents to be in place to help future judges and lawyers determine which is which. The provisions of §2(d) of the Designs Act also provide a succinct list of the points that differentiate an industrial design from any other type of intellectual property, which aids in identifying what kind of protection is needed to protect them. Thus, I believe that §2(d) of the Designs Act fulfills its objectives in that regard.
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If you are interested in participating in the same, do let me know.
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