In today’s fast-paced modern world intellectual property gives a competitive edge to the business. Intellectual property laws provide tools to the owner by way of exclusive rights for effective protection of their investment of time and money in the creation of intellectual property. The protection granted by the intellectual property law accelerates competition along with encouraging economic growth and development of any country. Intellectual property rights are vested in various forms such as Patents, Design, Trademark, Copyrights, and Trade Secrets. Patent Designs are valuable intellectual property for businesses around the globe. Patent designs are also termed Industrial designs.
Under patent design protection, appearance of the invention is given importance as compared to the functionality. The invention of any new, original, and ornamental design for an article of manufacture may be protected under the design patent.
The registration of a design patent provides several benefits to the holder of a design patent.
- Proof of ownership
- The exclusive right to use and seek relief of infringement in the appropriate court
- Create Goodwill
- Create intangible assets
- Protect one’s work in the country of origin but also in all countries
- Increases brand value
- Registration enhances freedom to operate in the market
Non-provisional design patent
Applications under patent law can be provisional and non-provisional. An inventor can protect his idea and seek time to perfect his invention by making a provisional application. A provisional application is filed if the invention is in an experimental stage. Patent law grants protection to the applicant filing the application first. Filing a provisional patent application provides priority to the applicant for the registration of a patent. A provisional patent application is valid for a period of 12 months. It means that an applicant is provided 12 month’s time to complete his inventions and also to evaluate the potential market for the invention. There is no extension of the 12 months period. Filing of a provisional patent application does not results in a grant of patent. Submission of a non-provisional application begins the registration process. A non-provisional application is reviewed by the patent office for the grant of a patent. A design patent is protected only if it exists in combination with the article it is applied to. If the invention relates to a new functional aspect as well as the aesthetic features an application for both utility and design patent can be filed.
Utility patent vs design patent
A design patent protects only the visual character of the product or item. It protects the ornamental design such as the shape, configuration, and/or surface ornamentation that is embodied in or applied to an article. The utility patent protects the structural or functional aspect of an article. In simple terms, a utility patent protects the way an article is used and works, while a design patent protects the way an article looks.
In utility patent application detailed technical disclosures are to be made along with the drawings, whereas the application of design patents is primarily based on the drawings to seek registration.
A utility patent can have one or more claims that list the elements of inventions and describes in words the scope of protection sought under the registration. For a design patent, there is only one claim which consists drawing that demarcated the scope of protection applied under the registration.
For the international registration of utility patent, application is filed under the Patent Cooperation Treaty (PCT) and the application for international registration of design patent is filed under the Hague Agreement.
International design patent
The registration of the industrial design can be done in two ways that is by way of application to the national or regional offices of the respective country and/or application under the Hague System.
The Hague system is a mechanism to acquire, maintain, and manage design patents in member countries and intergovernmental organizations (Contracting Parties) of the Hague Union. Under the Hague system, up to 100 designs can be registered in various member countries through a single international application. The application can be made in a single language either directly with the International Bureau of the World Intellectual Property Organization (WIPO) or indirectly through the office of the applicant’s Contracting Party. The Hague system provides easy and swift acquisition of design patent protection in less time and at comparatively less cost.
The application under the Hague system can be filed by any applicant who is –
- be a national of a Contracting Party or a member State of an intergovernmental organization that is a Contracting Party, such as the European Union or the African Intellectual Property Organization, or
- have a domicile in the territory of a Contracting Party, or
- have a real and effective industrial or commercial establishment in the territory of a Contracting Party.
- on the basis of habitual residence in a Contracting Party as per the provisions of the Geneva Act of 1999.
The international application can be filed in English, French, or Spanish. A prior national or regional application or registration is not required. As mentioned above, a single application can be made for up to 100 patent designs with the condition that they must belong to the same class under the Locarno classification. Registration under the Hague System is granted at least 15 years of protection. International registration is valid for an initial period of five years, counting from the date of registration. It can renew at least twice, up to the maximum duration of protection allowed by each contracting party.
On submission of the complete application, the applicant is required to provide all the documents and replies as raised by the patent office. A design patent certificate is issued by the patent office on satisfying the patent office will all the necessary requirements under the law.
Design patent for fashion
For a fashion product to be successful in the market it is required to be visually attractive. The fashion products must appeal to the eyes of the customers. As a result, fashion designers create new designs by investing their skills, creativity, and time. Protection of designs is essential to seek a fair return on investments.
Fashion products have a very short shelf life. Fashion designers or artists have to come up with novel ideas consistently and encash their artistic creativity as much as possible within that limited time. Along with this, there are instances of fake, defective, counterfeits, or knockoffs fashion goods which can be found on famous shopping markets or streets for trifles as compared to the original products. Such fake, defective, counterfeit, or knockoff fashion goods affect fashion designers and beauty brands by diminishing their ability to commercially exploit their artistic and creative work.
To gain exclusivity of the original design applied to the fashion article it is essential to seek protection under the design law. The fashion designer is granted a right to restrain others from creating designs or articles resembling the original registered design. Design patent provides protection to the design of shoes, jewelry, handbags, etc., and to the conceptual aspect of the product and not the product provided that such product is novel and non-functional in nature.
In conclusion, a design patent is an important form of intellectual property. Design patent protection is sought by all the industries such as electronics, cosmetics, sports apparel, furnishings, textile and clothing, toys, and many more. Globalization and free access to the international market require international protection for the design patent and the Hague system provides for simple and economic international registration.
