IP 2.5 INTRODUCTION TO INDUSTRIAL DESIGNS
The law of industrial design protects the aesthetics and appearance of a product. The beauty and appearance of a product can determine its marketability. Protection is usually granted for 5 years. After the expiration of the first 5 years, it is renewable every year.
Benefits of industrial design.
- It rewards and encourages aesthetic creativity.
- Protects the customers (from counterfeit) and the integrity of the manufacturers.
- Ensures the commercial success of the product.
What is an Industrial Design?
Section 32 defines a design as an industrial design. Section 12 then defines an industrial design as; “Any combination of lines or colours or both and any three dimensional form associated with colours or not… intended to be used as a model or pattern to be multiplied by industrial process”.
According to WIPO, an industrial design “refers to the right granted in many countries pursuant to a registration system to protect the original, ornamental and non-functional features of an industrial article or product that results from design activity”.
In Re Clarks Register Design, the court described a design as “a pattern or representation which the eye can see and which can be applied to a manufactured article”.
From the definitions, we should note that:
- A design may be ornamental or decorative: In FO Ajibowo and Co Ltd Western Textile Mills Ltd, Supreme Court held that a textile design qualified as an industrial design (being a combination of lines or colours or both).
- The design may also be incorporated into the design of a product. For example, a multi-coloured flower vase, a fine shoe sole, a sleek phone (like S7 Edge). E.g. if Samsung wanted to get protection, they may try Patenting the S7 phone (maybe for its unique features), then applying for industrial design protection of the way it looks (i.e. the curved edges).
- The design must be reproducible by industrial means. i.e. it should be capable of duplication/large scale production. For example printing, embroidery, and so on. Articles produced on a large scale does not necessarily need to be technical. Therefore hand carved sculptures or paintings, etc. should go under copyright protection rather than industrial design. An example of industrial design is the Versace design.
- If the design is for a technical, functional or utility purpose, it should go under patent. Question to ask here is; are customers attracted to the design because of its beauty or because of its utility? Where it is a useful stuff, it is better under patent protection. In Amp V Utiluy, an electrical terminal for a washing machine was not protectable because it performed a technical function. In Best V Woolworth, the court held that the whistle of a whistling-kettle (which whistles when the water reaches boiling point enhanced its outward appearance since water could still be boiled in the kettle without the whistle. Although this judgment has been criticised that the whistle performed a function like notifying that the water has boiled and preventing fire outbreak.
We just take a brief walk through history;
From the Designing and Printing of Lilus, Cottons, Calicos and Muslins Act of 1787 to the Designs Act 1842 (which provided three months protection) to the Patents, Designs and Trademarks Act 1883, till the 1949 Registered Designs Act which remained in force in the U.K until the promulgation of the Copyright, Designs and Patents Act of 1988. Now in Nigeria; the Patents and Designs Act 1949 was enacted by the colonial administration. It required pre-registration in the U.K. but in 1970 when the Nigerian Patents and Designs Act was enacted we had a more indigenous statutory regime and registration of designs could be done in Nigeria.