An industrial design right is an intellectual property rights that grant exclusive protection to the visual appearance of products that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft.
Registering for an industrial design right is related to granting a patent.
The Locarno Classification, an international classification system established by the Locarno Agreement (1968), provides a standardized framework for categorizing industrial designs according to their type and purpose. This system facilitates the registration and management of design rights across jurisdictions.
Industrial design rights under The Hague System
Under the Hague Agreement Concerning the International Deposit of Industrial Designs, a WIPO-administered treaty, a procedure for an international registration exists. To qualify for registration, the national laws of most member states of WIPO require the design to be novel. An applicant can file for a single international deposit either with WIPO or through the national office in a country party to the treaty. The design will then be protected in as many member countries of the treaty as desired. Design rights started in the United Kingdom in 1787 with the Designing and Printing of Linen Act and have expanded from there.
In 2022, about 1.1 million industrial design applications were filed worldwide. This represents a decrease of 3% on 2021, marking a first drop in filings since 2014. In 2023, the number of applications rose again, with about 1.19 million design applications filed.
Law making
India India's Design Act, 2000 was enacted to consolidate and amend the law relating to protection of design and to comply with the articles 25 and 26 of Trade-Related Aspects of Intellectual Property Rights TRIPS agreement. The new act, (earlier Patent and Design Act, 1911 was repealed by this act) now defines "design" to mean only the features of shape, configuration, pattern, ornament, or composition of lines or colours applied to any article, whether in two- or three-dimensional, or in both forms, by any industrial process or means, whether manual or mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction.
Indonesia In Indonesia the protection of the Right to Industrial Design shall be granted for 10 (ten) years commencing from the filing date and there is not any renewal or annuity after the given period.
Industrial Designs that are Granted Protection 1. The Right to Industrial Design shall be granted for an Industrial Design that is novel/new 2. An Industrial Design shall be deemed new if on the filing date, such Industrial Design is not the same as any previous disclosure. 3. The previous disclosure as referred to in point 2 shall be one which before : a. The filing date or b. The Priority Date, if the applicant is filed with priority right. c. Has been announced or used in Indonesia or outside Indonesia.
An industrial design shall not be deemed to have been announced if within the period of 6 (six) months at the latest before the filing date, such industrial design a. Has been displayed in a national or international exhibition in Indonesia or overseas that is official or deemed to be official; or, b. Has been used in Indonesia by the designer in an experiment for the purposes of education, research or development. The Design Act of Indonesia, 2000 (31 of 2000) Industrial Design Attorney in Indonesia
Canada Canadian law affords ten years of protection to industrial designs that are registered; there is no protection for unregistered designs. The Industrial Design Act defines "design" or "industrial design" to mean "features of shape, configuration, pattern or ornament and any combination of those features that, in a finished article, appeal to and are judged solely by the eye." The design must also be original: in 2012, the Patent Appeal Board rejected a design for a trash can, and gave guidance as to what the Act requires:, discussing Re Victor Stanley Inc., 2012 CarswellNat 885
The degree of originality required to register an original design is greater than that laid down by Canadian copyright legislation, but less than that required to register a patent. The articles being compared should not be examined side by side, but separate so that imperfect recollection comes into play. One is to look at the design as a whole. Any change must be substantial. It must not be trivial or infinitesimal.
During the existence of an exclusive right, no person can "make, import for the purpose of trade or business, or sell, rent, or offer or expose for sale or rent, any article in respect of which the design is registered." The rule also applies to kits and substantial differences are in reference to previously published designs.
Registering an industrial design in Canada may be appropriate for a variety of articles such as consumer products, vehicles, sports equipment, packaging, etc., having an original aesthetic appearance, and may even be used to protect new technologies such as electronic icons. Industrial designs can also serve to complement other forms of intellectual property rights such as patents and trade-marks.
The Canadian courts see infrequent litigation concerning industrial designs the first case in almost two decades took place in 2012 between Bodum and Trudeau Corporation concerning visual features of double wall drinking glasses.
It is possible for a registered design to also receive protection under Canadian copyright or trademark law:
a "useful article" (ie, one with a utilitarian function) will receive copyright protection where it is reproduced in a quantity of fifty or less, but that limitation does not apply with respect to: a graphic or photographic representation that is applied to the face of an article a trade-mark or a representation thereof or a label material that has a woven or knitted pattern or that is suitable for piece goods or surface coverings or for making wearing apparel a representation of a real or fictitious being, event or place that is applied to an article as a feature of shape, configuration, pattern or ornament where a registered design has become publicly identifiable with the product, it may be eligible for registration as a "distinguishing guise" under trademark law, but such registration cannot be used to limit the development of any art or industry
European Union
Registered and unregistered European Union designs are available which provide a unitary right covering the European Union. Protection for a registered EU design is for up to 25 years, subject to the payment of renewal fees every five years. The unregistered EU design lasts for three years after a design is made available to the public and infringement only occurs if the protected design has been copied.
United Kingdom
Legislation given in Britain during the years 1787 to 1839 protected designs for textiles. The Copyright of Design Act passed in 1842 allowed other material designs, such as those for metal and earthenware objects, to be registered with a diamond mark to indicate the date of registration.
In addition to the design protection available under community designs, UK law provides its own national registered design right (Registered Designs Act 1949, later amended by Copyright, Designs and Patents Act 1988) and an unregistered design right. The unregistered right, which exists automatically if the requirements are met, can last for up to 15 years. The registered design right can last up to 25 years subject to the payment of maintenance fees. The topography of semi-conductor circuits are also covered by integrated circuit layout design protection, a form of protection which lasts 10 years.
Japan
Article 1 of the Japanese Design Law states: "This law was designed to protect and utilize designs and to encourage creation of designs in order to contribute to industrial development". The protection period in Japan is 20 years from the day of registration.
United States U.S. design patents last fifteen years from the date of grant if filed on or after May 13, 2015 (fourteen years if filed before May 13, 2015) and cover the ornamental aspects of utilitarian objects. Objects that lack a use beyond that conferred by their appearance or the information they convey may be covered by copyright—a form of intellectual property of much longer duration that exists as soon as a qualifying work is created. In some circumstances, rights may also be acquired in trade dress, but trade dress protection is akin to trademark rights and requires that the design have source significance or "secondary meaning". It is useful only to prevent source misrepresentations; trade dress protection.
Australia In Australia, design patent registration lasts for 5 years, with an option to be extended once for an additional 5 years. For the patent to be granted, a formalities exam is needed. If infringement action is to be taken, the design needs to become certified which involves a substantive examination. This process ensures that the design is truly unique and eligible for protection under Australian patent law.
Duration of design rights Depending on the jurisdiction, registered design rights have a duration between 15 and 50 years.This is the range of contracting parties of the WIPO Hague system
Members of the WIPO Hague system have to publish their maximum term of protection for design rights. These terms are presented in the table below. Some of the jurisdictions below are unions or collaborative office for design registration like the African Intellectual Property Organization, the European Union and the Benelux.
Country or union Maximum duration of design right African Intellectual Property Organization 15 years Albania 15 years Armenia 15 years Azerbaijan 15 years Belize 15 years Benelux 25 years Benin 15 years Bosnia and Herzegovina 25 years Botswana 15 years Brunei Darussalam 15 years Bulgaria 25 years Cambodia 15 years Côte d'Ivoire 15 years Croatia 25 years Denmark 25 years (except: spare parts, 15 years) Democratic People's Republic of Korea 15 years Egypt 15 years Estonia 25 years European Union 25 years Finland 25 years (except: spare parts, 15 years) France 25 years Gabon 15 years Georgia 25 years Germany 25 years Ghana 15 years Greece 25 years Hungary 25 years Iceland 25 years Italy 25 years Japan 20 years Kyrgyzstan 15 years Latvia 25 years Liechtenstein 25 years Lithuania 25 years Mali 15 years Monaco 50 years Mongolia 15 years Montenegro 25 years Morocco 50 years Namibia 15 years Nepal 25 years Niger 15 years Norway 25 years Oman 15 years Poland 25 years Republic of Korea 20 years Republic of Moldova 25 years Romania 25 years Russian Federation 25 years São Tomé and Príncipe 15 years Senegal 15 years Serbia 25 years Singapore 15 years Slovenia 25 years Spain 25 years Sweden 25 years (except: spare parts, 15 years) Switzerland 25 years Syrian Arab Republic 15 years Tajikistan 15 yearsSri Lanka 15 years The former Yugoslav Republic of Macedonia 25 years Tunisia 15 years Turkey 25 years Ukraine 15 years United Kingdom 25 years United States of America 15 years
Industrial design applications