The Pomegranate Series, Episode 7: Suit Up! (Designs)

In the previous episode, we discussed about the protection of new inventions. We found that a patent are granted for a new product which inter alia necessarily has some utility attached to it. Basically this is innovation which makes life easier. But apart from functional ones, we are known to derive pleasure also from those inventions which embody something beyond something as rational as utility.

The fashion industry, for example, almost entirely strives on innovation as well as creativity. Many among us have a special place in our hearts for branded clothes and accessories. Celebrated brands like Vero Moda and Levi’s handsomely pay their workforce to come up with new designs for their product range every year. Novelty and uniqueness provide the incentive for consumers to buy their product and their rivals to compete more fiercely. These are essentially drawings made on paper (whether physical or on computer software) which, after being applied to some kind of cloth (or dress material), are put up for sale as the final product. Design protection doesn’t end here; it extends to every novel design which has ornamental or visual value of any kind.

The interesting aspect is that the cloth by itself has no IP in itself unless the design in the drawing is applied to it. Even though novelty is an indispensible requirement, this effort is not rewarded with patent protection. The reason for this refusal is that these products lack usefulness. We buy and use a t-shirt because we like their shape, the colorful prints, the beautiful embroidery and essentially all the ornamental and decorative features on the garment which appeal only to our eyes. This fusion of patent and copyright is classified as and protected by IP law as an Industrial Design or Design Patent.

Every design is starts out as a copyright; because it is always based on an artistic work like the sketch of a coke bottle on paper. Serving as a blue print, the sketch is then applied to plastic by using a mechanical process to arrive at what we call a Coke Bottle. But the law says that any three dimensional object (representation) based on an artistic work will also be protected by copyright law. This is where IP law facilitates the beautiful co-existence of design and copyright. The law says that for the first 50 reproductions[1] of the artistic work, a copyright would be operative; but the moment a 51st bottle manufactured by Coca Cola, it falls under the ambit of design law. Therefore an industrial design is an enhanced form of copyright, but falls short of qualifying as a patent. This is one of the reasons the violation of this IP right is termed as ‘Piracy of Design’ instead of infringement.

This form of IP accounts for the a 15-year term of protection for a massive range of manufactured goods such as carving of jewelry, confectionary products, the cuts of your furniture, design of your clothes, in addition to the unique shape and size of your accessories and even your car and that of almost all the Fast Moving Consumer Goods (FMCGs). Since many of these products are used by most of us in everyday life, we sometimes overlook the fact that all registered design have to be novel and previously unpublished (or otherwise in the public domain). Therefore you may realize that the shape or the ‘look’ of even the headlamps of any two car brands is never identical or similar. Therefore the novelty requirement in patents is just as strictly enforced while granting a design. Unlike copyright and trademark, a design (as well as a patent) has to be mandatorily been registered for enjoying IP protection.

Along with an Industrial Design, there is another IP which is protected only after being applied to a manufactured product. But the slight difference between them in terms functionality has caused our last Fundamental IP to be the superstar among the business fraternity.

Watch the last two episodes of the first season of The Pomegranate Series to meet this blockbuster.

Ritvik M. Kulkarni
III BA LLB
rmkulkarni.ils@gmail.com

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