Industrial Design

Industrial Design

In this lesson, you’re expected to:
– learn about the basic requirements of an industrial design
– understand how to obtain and protect an industrial design
– discover the similarities and differences between design rights, patents, and copyrights
According to WIPO, and in a narrow definition, “in a legal sense, an industrial design constitutes the ornamental or aesthetic aspect of an article.”

It is the appearance, in whole or in part, of a product which derives from characteristics such as its shapes, contours, colors, lines, configuration, texture etc. with two-dimensional forms (drawings) and three-dimensional forms (models) or a combination of both, without taking into account its technical or functional characteristics.

NOTE: In some countries, the concepts of industrial design and engineering design can overlap. In general, engineering focuses principally on functionality or utility of products whereas industrial design focuses principally on aesthetic and user-interface aspects of products.
Industrial Design Requirements and its Creative Process

Depending on the applicable laws, industrial designs must fulfil the following conditions – novelty and/or originality:

 Novelty: an industrial design is considered to be new or novel if it has not been previously disclosed to the public.

 Originality: it means the design has not been copied and it significantly differs from known designs or combinations of known design features. Industrial design is a result of the independent work of its creator who has expended sufficient time, labour, and skill in originating it.

The process of design considers the creativity of the creator and it is separated from the process of manufacturing. The creative act of determining and defining a product’s form and features takes place in advance of the physical act of making a product, which consists purely of repeated, often automatic replication.

In the creative process, industrial designers may have different concerns about the product, such as the form of the object, location of details with respect to one another, colors, texture, choice of materials, the way the product is presented to the consumer at the point of sale, and usefulness.

[Optional] How to be an Industrial Designer
Watch this 5-minute video to learn more:
What kinds of Industrial Design can be protected?

Industrial designs are applied to a wide variety of products of industry and handicraft items, usually corresponding to the shape of the whole or part of a product (3D) or surface pattern (2D), which are generally external features of a product.

As examples of industrial design that can be protected, WIPO lists: from packages and containers to furnishing and household goods, from lighting equipment to jewellery, and from electronic devices to textiles.

Industrial designs may also be relevant to graphic symbols, graphical user interfaces (GUI), and logos.

Examples of what cannot be protected as industrial design are:

 a method or principle of construction;

• a specific material of a product – e.g., the fact that a product is made of wood is not protectable;

• the shape or form of a product that is required to enable it to be connected to or placed against another product/part of a product (e.g., a plug or screw top of a bottle).

Obtaining an Industrial Design Protection and its Consequences

Regarding registration as a condition to legally protect industrial designs, the following situations can be observed around the world:

• In most countries, an industrial design needs to be registered to be protected under industrial design law as a “registered design”. To register an industrial design, the creator must file an application at the national office of the country where he/she is seeking protection.

• In some countries, industrial designs are protected under patent law as “design patents”.

• Depending on the particular national law and the kind of design, industrial designs may also be protected as works of art under copyright law.

• Industrial design laws in other countries grant, without registration, time- and scope-limited protection to so-called “unregistered industrial designs”. The design right arises automatically and there is no need for the design to be registered to obtain protection.

NOTE: The unregistered design provides a useful and cost-effective tool especially for companies whose designs may remain on the market for a very short time, i.e., the fashion industry. In addition, it provides companies with the opportunity to test the marketability of their products before going through the effort and expense of registering all designs.
As a consequence of registration, the owner of a registered industrial design or of a design patent has the exclusive right to use the design and to prevent third parties from making, selling or importing articles that are a copy (or substantially a copy) of the registered design, even when it was created without knowledge of the registered design.

On the other hand, unregistered design protects the owner only against copying – and not against independent creation of a design.

NOTE: Technical aspects have no relevance for the purposes of a design registration. Only the external form is relevant for industrial design.
[Optional] Should I have a registered design?
Watch this 2-minute video from the UK Intellectual Property Office to learn more:
Why Promote and Protect Industrial Designs?

Below are some reasons to justify the protection of industrial designs:

1) To reward for creativity and encourage economic development

Successful shapes and appearances cost money to design. By protecting industrial designs, the manufacturing and industrial sectors are able to obtain a fair return on investment made in creating the design and marketing the product. Industrial designs are business assets that can increase the commercial value of a company.

2) To increase the marketability of the product

Industrial design adds value to a product and in many cases, the design itself becomes the identity of a brand. Consumers often take the visual appeal of a product into consideration when choosing between different products. This is especially true when the market offers a large variety of products with the exact same function.
3) To allow sale or license of the product

Protection provides rights that may be sold or licensed to another enterprise, which will then be a source of income for the owner of the rights.

4) To ensure protection against unauthorised third parties

The protection of industrial designs avoids illegitimate copy or imitation of products by third parties who otherwise would take advantage of others’ effort and destroy others’ brand value.

How long does industrial design protection last?

Industrial design rights are granted for a limited period. The duration of the protection of industrial design rights varies from country to country, but it generally lasts for a period between 10 to 25 years.

In many countries, the total duration of protection is divided into successive renewable periods.

The Hague Agreement concerning the international deposit of industrial designs

Industrial design rights are territorial, meaning these rights are limited to the country (or region) where protection is granted. As a consequence, at present, no “world” or “international” industrial design right exists.

However, The Hague System is a mechanism for the international registration of industrial designs which provides a practical business solution for registering up to 100 designs in over 66 territories.

By means of filing with the International Bureau of the WIPO, which involves one single international application in one language with one set of fees, The Hague Agreement allows users to save time and money with a quick and easy way to obtain design protection in several countries. Otherwise, a whole series of applications with different national (or regional) offices would be necessary.

[Optional] Hague Agreement – Design Protection
Watch this 5-minute video to learn how to protect designs with the Hague Agreement:
Some of the similarities and differences between design rights, patents, and copyrights are:

1) Registration

In many countries, the same industrial design product can be protected under industrial design, copyright, and /or patent law. The originality aspect is taken into account for the copyright protection and the technical aspects are considered for a patent protection. Unlike patent registration, disclosing a new drawing before filing the application does not invalidate the registration through breaking the novelty requirement.

2) Mandatory registration for protection

Some countries grant protection to industrial design right without registration (unregistered industrial designs). In the same way, in other countries, copyright comes into existence automatically upon creation in some material form. However, to obtain a patent and its legal protection, the invention requires registration with the Patent Office.

3) Duration of protection

Although design rights exist because successful shapes and appearances demand investment to design and can be worth a great deal to their owner commercially, it would not be fair or practical for one person to monopolize it for an extended period of time.

In consequence, the law has given a longer protection to copyright (at an international level, at least 50 years after the creator’s death) in comparison to the protection of design right (at a national level, up to 25 years from the date of filing). The patentis generally granted for 20 years from the filing date of the application.

Industrial Designs vs. Patents vs. Copyrights
Enlarged version:
Famous Examples of Industrial Design

Here are some examples of industrial design that combine aesthetic appeal with creative problem-solving:

• Mini Cooper
• Coca-Cola Contour Bottle
• iPod / iPhone / iPad
• Vespa Scooter

Image Source:
Jim Rohn Sứ mệnh khởi nghiệp