NATIONA LAW INSTITUTE

UNIVERSITY
BHOPAL,M.P

A Project On The Law Of Industrial Design on

topic
Exploring The Elements, Nature And
Subject
Matter In Industrial Design

Submitted to, Submitted by,

Prof.Ghayur Alam Ajita Nadkarni
2012 BALLB 101
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 ACKNOWLEDGEMENT
I would take this opportunity to acknowledge the roles
played by different people in the successful completion of this
project.I would like to thank my father who was a constant
source of inspiration in the whole process of research and
analysis of the matter involved in the project.I would also
thank my subject teacher Professor Ghayur Alam who was
instrumental in suggesting me the project topic and who
played an important role in guiding me throughout the
framing of this project. Without the constant support of my
above mentioned mentors ,the project would not have
materialized and turned into a reality.

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 INDEX

Introduction
Historical background of industrial design
Nature and scope of industrial design
Subject matter of industrial design
Conclusion
Bibliography

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 INTRODUCTION
Industrial design's Meaning:
1. It a Process of taking some object from "existing state"
and moving to a preferred state. This applies to a new artifacts
having undefined existing state created previously and whose
state is to be improved.
2. Industrial design connotes aesthetic aspects of an item,
with regards its shape and colour. This design is applied to
variety of product ranging from various instruments to
watches to smart phones.
3. According to Section 2 (d) of Indian Design Act 2000-,
Design Relate to shape, configuration, pattern, composition of
lines, ornaments and colour given to an article either in two
dimensional or three dimensional or both forms, by industrial
process/manual/mechanical/chemical separately or combined
so as in a finished article, appears or judged solely by eye;
without any mode or principle of construction by a
mechanical device, and dose not include trade mark or
property mark or any artistic work as defined in copy right.
Industrial designs is one of element of intellectual property.
And it is a creative activity which gives ornamental or formal
appearance to the product.
Industrial right connotes to a novel or original design that is
given to the proprietor of a validly registered design.

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The prime purpose of design law is to promote and protect the
design element of industrial product, intends to promote
innovative activity in the field of industries.

BACKGROUND/HISTORICAL ASPECTS OF
INDUSTRIAL DESIGN:
For the first time in the history in this regard in the second
half of 19th century the empire of Austria and Hungary in
1873 at Vienna, invited other countries to take part in an
exhibition of inventions.The participation was weak because
of the fact that the foreign visitors were not willing to exhibit
their inventions because of an inadequate legal protection
offered to the exhibited inventions.
For exhibition of invention two developments took place-
1.The Special Austrian law was passed for temporary
protection to all foreign participants in the exhibition for their
inventions, trademarks and industrial designs.
2.Congress of Vienna for patent reform was convened during
the year of 1873.
As a follow up to Vienna Congress an international Congress
of Industrial property was convened in Paris in 1878.Its main
aim was to determine the basis of uniform legislation in the
field of Industrial Property.After that in France a final draft
was prepared proposing an international union for protection
of Industrial Property.And that draft was sent to French
government and to the other countries with an invitation to
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attend the 1880 international conference in France. The
International Conference in Paris held in 1880 came with the
substantive provisions which are to date remained the main
features of Paris Convention.
In 1883 Diplomatic Conference was convened in Paris which
was a signature convention for protection of industrial
property.This convention was signed by 11 states namely
Belgium, Brazil, El Salavador, France, Guatemala, Italy
,Netherlands, Portugal, Siberia and Switzerland. In 1884 the
Great Britain,Tunisia and Equador joint the signatories
bringing the number to 14 countries.
After World War II in the first quarter of 20 th century more
countries joined the signatory group.After 1883 Paris
Convention was revised time and again. Each of the revision
conferences
Adopted a revised act of Paris Convention.All these revisions
are still of importance.

LEGISLATION- INDUSTRIAL DESIGN:

Evolution of legal system for protection of Industrial Design
based on establishment of balance between:
1.The need to provide effective and efficient protection so as
to fulfil its functions as of promoting the Design element
And

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2.The need to ensure that the law does not unnecessarily
provide impediments to the free use of available design.
This balance leans on number of matters which are as follows:
1.Subject matter of protection.
2.Rights which apply for proprietor of subject matter.
3.Duration of the rights
4.Entitlements of the rights
5.Acquisition of such rights (method)
Important principals which were laid down in Paris
Convention 1883 on Intellectual Property can be divided in 4
major groups:
1.Rules of substantive laws which gives a basic right known
as right to national treatment in each of the member countries.
2.Rights of priority.
3.Certain rules in substantive law (Group 1) which contains
rules establishing rights and obligations of natural person and
legal entities permitting member states to enact these
legislations following these rules.
4.Deals with administrative framework set up to implement
the conventions
Paris Convention for Industrial Design, Article 5 tells the
obligation of member countries to protect the industrial design
not elaborating the ways in which protection is to be
given.The member countries can abide with this obligation
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through special legislative enactments for protection of
industrial design.
Agreement of Hague is basically an international registration
system which offers protection of industrial designs in various
states and inter governmental organisations.Both are referred
to as contracting parties and this protection of industrial
design is obtained by a single international application filed to
the WIPO (ie International Bureau of World Intellectual
Property Organisation).Thus under Hague Agreement a single
international application replaces the whole series of
applications which would have been effected with different
national or regional offices.3 international treaties constitute
Hague Agreement.
1.Geneva Act of 1999 (1999 Act)
2.The Hague Act of 1960 (1960 Act)
3.London Act 1934 (1934 Act)
London Act of 1934 is no more in force.
To be entitled to file an international application one has to
satisfy atleast one of the following conditions:
1.Nation should be a contracting party (member state or inter
governmental organisation)
2.They should have a domicile in the territory of contracting
party and the party should have effective industrial and
commercial establishment in the territory of contracting
party.Additionally international application can be filed under

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1999 Act on the basis of habitual residence in contracting
party.

NEW INDIAN DESIGNS ACT 2000

The original 1911 Act was amended numerous times in
colonial period and in post independence period.Finally
Indian Design Act 2000 was enacted which consolidated all
the amendments in accordance with the TRIPS agreement
which was effected on May 11,2001 providing more effective
protection to registered designs thereby encouraging design
activities.It grants owner or proprietor of registered design an
exclusionary right of selling, licensing, assigning and using
the same in any product.The creator or inventor of the design
to file an application for registration at the earliest possible
time in order to prevent the other person from claiming the
right on a particular design.A design is considered as new if
its not available to public before the filing date or registration
application.Novelty is decided on a worldwide basis.The main
change which the act has brought is exclusion of artistic work
from the term design.In the same way the copyright act
excludes any design registered under the designs act from the
scope of protection under the copyright act.The design in the
new definition makes many conflicts in giving protection to
artistic works.This was cleared in microfibers Incorporation
v.Girdharlal Co and Ors that the artistic works are excluded
from design protection and they are the piece of art in itself
which are paintings.The court further clears that the artistic
works with an objective of industrial use are not excluded
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from section 2(d) of Designs Act and they should be
registered to get protection. The court clearly explained that
the exclusion of the artistic work as mentioned under section
2(c) of Copyright Act and section 2(d) of Design Act is only
meant to paintings such as of M.F.Hussain. And thereby
paintings, sculptures and art work are specifically excluded in
the new act. The new act has made a major change in the time
period of initial protection from 5 years to 10 years but the
maximum period of protection would remain 15 years.
In design piracy cases person who has infringed the copyright
shall be liable for fine not exceeding Rs 50,000 and the
proprietor can bring a suit for recovery of damage and
infringement.Infringement suit of registered designs should be
instituted at District Judge and higher court`s level.

DESIGN AND TRIPS:

TRIPS obliges members for protection of industrial designs
that are new or original.Further TRIPS requires the member to
grant the owner of protected industrial design the right to
prevent the third party who does not have consent for making,
selling or importing an article which is a copy or substantive
copy for commercial purpose.Such a person will have 10
years imprisonment for infringement of copyright under
Designs Act.

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INDUSTRIAL DESIGNS: NATURE AND SCOPE
A conception or suggestion of idea or shape or picture or
some arrangements or colours or lines which will be applied
to an article is design.Design is not an article.A design
depends on trends of a given society`s culture, economic,
political or legislative benefits ,values, perceptions,
perspectives and aspirations.Design is a skill and process
which converts present state of an article to the desired state
of an article by changing the existing artifacts to achieve
maximum functionality and desired result of an article over
which the design is applied.Designing over the article is for
the purpose of consumer or industrial use and there are many
factors attributed for the process of designing which are
elegance, visual appearance,safety, affordability, comfort,
functionality in consideration of competition, trend, fashion,
style, social concerns etc.

INDUSTRIAL DESIGN`S RIGHTS:

Rights for the purpose of protection and promotion of design
element in industrial article.Thus industrial design law
provides proprietor the exclusive rights to prevent
unauthorised use of designs in industrial article(ownership
over design).

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RIGHT`S ENTITLEMENTS:
Does right`s entitlement goes to the creator of the industrial
design? If created by employee or created by the contractor in
pursuance to commission of the industrial work. Here
entitlements according to legal provisions goes to
employer.Employer is enetitled for the rights over industrial
designs.Employee is paid for doing his duty or job and
contractor is also paid for doing the job.They do not have any
entitlement rights over industrial design even though they
have created them as they are already being paid for the job
they are required to do.

RIGHT`S NATURE:
Industrial designs` right prevents others from –
1.Making articles over which design is applied or embodied.
2.Importing articles to which design is applied or embodied.
3.Selling or hiring or offering for sale.
In some legislations rights prevent others from stocking of
articles to which designs have been applied or embodied.

COPYRIGHT ACT`S RELATIONS WITH DESIGNS

ACT:
Rights protecting under Industrial designs Act
simultaneously/conurrently receives protection from law of
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copyright.Industrial designs law has relations with the
copyright law and industrial property law.Thereby if a person
fails to obtain protection under Industrial designs Law he can
claim protection under copyright law which is available
concurrently/simultaneously.It also means that in the event of
expiry of the terms of protection under registered design
expires creator can avail protection under copyright law.This
is a cummulation and must be distinguished from co-existence
ie creator cannot get protection simultaneously under both the
acts.He has to choose one of them.

SUBJECT MATTER OF INDUSTRIAL DESIGN:

Industrial design over an industrial article is defined by design
which has been registered.Therefore design has to be
registered to become a subject matter.
Any industrial article is distinguished by 2 things which are
utility and visual appearance which shapes the preference of
the buyer for the article.Thereby design over the article and
packaging both are important.Therefore visual appearance or
appealing to eyes is an important factor.
Other important factors which affect the visual appearance are
configuration, shape, pattern, colours, lines, ornamentations
applied over the article.Artistic work life paintings and
sculptures over the industrial articles are not protected by the
Industrial designs Act.They should have pattern, shape,
configuration, ornamentation to impress the eyes.

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These designs must be registered to get protection under
Industrial designs law.For registration some conditions are
needed to be satisfied.These conditions are subject matter
which is qualified for registration. Abstract ideas are not
registered but some matter or pattern drawn on the paper
which would be applied to an article and appeals to the eye for
the design and not for its use for any purpose.

ARTICLE:
Article is an object of industrial use over which design is
applied for industrial or commercial purpose.So design is an
idea of colour, lines, shape, size, configurations,
ornamentations etc.These designs are the subject matters for
registration.If pattern is drawn on a paper it cannot be
registered as a design. Even an art painting over a paper
cannot be registered as a design.But articles like bottle, vase,
chair, table, motor body can be registered as a design if they
are novel.Here what is registered is a shape of an article.So
drawing on a paper is a convenient representation of a shape
and size of an article which can be registered.

APPLICATION OR EMBODIMENT:
Design must be applied to a utilitarian article for the purpose
of utility which distinguishes the objective of industrial design
protection from copyright protection where it is purely
concerned with the aesthetic creations.

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2D OR 3D:
Shape and configuration connects to 3 dimensional projection
for example shape of a bottle or vase or the other hand pattern
or ornamentation is 2 dimensional.

DESIGN`S FUNCTIONALITY:
Designs are applied over an article for its utility or
functionality which should be the novel to qualify for
registrations.While in copyright law aesthetic appearance is
important.

REGISTRATION:
Application for registration consists of 2 parts:
1.A written application
2.Illustration of a design.Photos are also permitted but not
preferred.
3 conditions must be fulfilled which are:
1.Aesthetic appeal is the feature which appeals to the eyes.It
should be over the article and not inside the article.
2.Originality: Applicants must declare that the design is not
in use to his knowledge by any person other than the applicant

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at the time of giving the application.Iindustrial designs officer
has adopted a 3 pronged test of originality which are:
a)Applicant`s design and prior art`s design should be
examined separately and should not be examined side by side.
b)Applicant`s design should be seen as a whole and any
change relevant to the prior art must be substantial and not
marginal.
3.Novelty: This is a prime factor for grant of registration of
industrial design.Novelty requires that it is new in that part of
the world or limited previous preceding time, disclosed by
tangible or oral means and thereby registration bestows
exclusionary rights to the originator and encourage new
designs evolvement.

NO PRIOR PUBLICATION OF DESIGN:

It should be new or original design and it should not be
published in that territory or state or country.

DURATION:
The total duration of registration of design is 15 years.Intially
it is for 10 years which is extended by another 5 years after an
application for registration and with the fee of Rs 200 to the
controller.

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CONCLUSION:
Industrial design is not an abstract idea but it is a clear idea of
shape, size, configuration, colours drawn on a paper which is
applied to an industrial article for the purpose of use giving it
a distinct feature, which appeals to eyes.
It needs to be registered to get protection under industrial
designs law in India.
Registration gives exclusionary right to the holder or
proprietor of the registered design against unauthorised use
like replicating or copying without consent.Subject matter, its
originality. Novelty are the co factors for registration.

BIBLIOGRAPHY:
1.Law of copyright and industrial design by P. Narayanan, 4 th
edition published by eastern law house, 2007.
2.Intellectual property law handbook by Dr B.L.Wadhera, 2 nd
editin published by Universal Law Publishing Co.Pvt.Ltd.

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