Industrial Design

A new product or packaging design, or some such ornamental feature, and eligible for intellectual property law exclusive-use protection.

A form of intellectual property.

In Copinger and Skones James on Copyright, the authors describe industrial design as:

"A design is, in broad terms, the plan or scheme for the appearance of an article (or part of an article). It is concerned with what an article looks like or is intended to look like. It is not concerned with how an article performs its function."

The Canadian Intellectual Property Office describes an industrial design as:

"An industrial design is the features of shape, configuration, pattern or ornament (or any combination of these features) applied to a finished article made by hand, tool or machine. It may be, for example, the shape of a table or the shape and ornamentation of a spoon. The design must have features that appeal to the eye."

Some jurisdictions, such as the United Kingdom and European Union, use the term design, omitting the adjective "industrial", but other than differences on point of detail, represent intellectual property protection of the same product feature.

The Registered Design Act of 1949 (England) now defines design incorporating the words of the Directive 98/71/EC of the European Parliament and of the Council 13 October 1998:

"... the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product or its ornamentation."

Industrial designs or registered designs are similar but distinct from copyright protection. Further, some jurisdictions extend protection to designs whether registered with the government or not (similar to copyright).

Generally, registration requires that the design be associated with a product as defined in the relevant statute, and that the design be novel. Registration usually provides the registrant with a monopoly on the use of the design for a prescribed period of time; for example, for 5 years, renewable four times so as not to exceed 25 years.

It is not the article or product which is protected by registered or industrial design; it is the design. This distinction was made in the 1901 case Dover:

"Design means, therefore, a conception or suggestion or idea of a shape or of a picture or of a device or of some arrangement which can be applied to an article by some manual, mechanical or chemical means. It is a conception, suggestion or idea, and not an article, which is the thing being capable of being registered. It is a suggestion of form or ornament to be applied to a physical body."

REFERENCES:

• Access to European Law
• Canadian Intellectual Property Office (CIPO)
• Cimon Ltd. v  Bench Made Furniture 1965 Ex. CR 811 (1964)
• Dover v Nurnberger Celluloid Waren Fabrik 2 Chancery 25 (1910)
• Duhaime, Lloyd, Intellectual Property Resources
• European Designs Directive, Directive 98/71/EC of the European Parliament and of the Council 13 October 1998, published at http://eur-lex.europa.eu/en/index.htm
• Garnett, K., Copinger and Skones James on Copyright, 14th Edition (London: Sweet & Maxwell, 1999).
• Howe, Martin, Russell-Clarke and Howe on Industrial Designs, 7th Edition (London: Sweet & Maxwell, 2005).