Chronicle EditorAleck Ncube
IN this first article for the year 2018, I want to start by introducing a form of Intellectual Property that SMEs can take advantage of and protect their innovations. Industrial Designs are an important form of Intellectual Property, which I strongly believe can transform the fortunes of many SMEs.
What is an Industrial Design?
In everyday language, an industrial design generally refers to a product’s overall form and function. An armchair is said to have a “good industrial design” when it is comfortable to sit in and we like the way it looks. For businesses, designing a product generally implies developing the product’s functional and aesthetic features taking into consideration issues such as the product’s marketability, the costs of manufacturing or the ease of transport, storage, repair and disposal.
From an intellectual property law perspective, however, an industrial design refers only to the ornamental or aesthetic aspects of a product. In other words, it refers only to the appearance of an armchair.
Although the design of a product may have technical or functional features, industrial design, as a category of intellectual property law, refers only to the aesthetic nature of a finished product, and is distinct from any technical or functional aspects.
An industrial design is relevant to a wide variety of products of industry, fashion and handicrafts from technical and medical instruments to watches, jewelry, and other luxury items; from household products, toys, furniture and electrical appliances to cars and architectural structures; from textile designs to sports equipment.
Industrial design is also important in relation to packaging, containers and “get–up” of products. As a general rule, an industrial design consists of: three-dimensional features, such as the shape of a product, two-dimensional features, such as ornamentation, patterns, lines or colour of a product; or a combination of one or more such features.
Creative Designs in Business
Enterprises often devote a significant amount of time and resources to enhancing the design appeal of their products. New and original designs are often created to:
-Customise products to appeal to specific market segments: small modifications to the design of some products (e.g a watch) may make them suitable for different age groups, cultures or social groups. While the main function of a watch remains the same, children and adults generally have very different tastes in design.
-Create a new niche market: in a competitive marketplace, many companies seek to create a niche market by introducing creative designs for their new products to differentiate them from those of their competitors. This could be the case for ordinary items such as locks, shoes, cups and saucers to potentially expensive items such as jewelry, computers or cars.
-Strengthen brands: creative designs are often also combined with distinctive trademarks to enhance the distinctiveness of a company’s brand(s). Many companies have successfully created or redefined their brand image through a strong focus on product design.
Why protect Industrial Designs?
An industrial design adds value to a product. It makes a product attractive and appealing to customers, and may even be its unique selling point. So protecting valuable designs should be a crucial part of the business strategy of any designer or manufacturer.
By protecting an industrial design through its registration at the national or regional intellectual property office, the owner obtains the exclusive right to prevent its unauthorised copying or imitation by others. This makes business sense as it improves the competitiveness of a business and often brings in additional revenue in one or more of the following ways:
By registering a design you are able to prevent it from being copied and imitated by competitors, and thereby strengthen your competitive position.
-Registering a valuable design contributes to obtaining a fair return on investment made in creating and marketing the relevant product, and thereby improves your profits.
-Industrial designs are business assets that can increase the commercial value of a company and its products. The more successful a design, the higher is its value to the company.
-A protected design may also be licensed (or sold) to others for a fee. By licensing it, you may be able to enter markets that you are otherwise unable to serve.
-Registration of industrial designs encourages fair competition and honest trade practices, which, in turn, promote the production of a diverse range of aesthetically attractive products.
How do you obtain protection for Industrial Designs?
An industrial design must be registered in order to be protected under industrial design law. To register an industrial design you must file an application at the national intellectual property (IP) office that is the Zimbabwe Intellectual Property Office (ZIPO).
Laws on unfair competition may also protect a company’s industrial design in some countries from imitation by competitors.
What rights are provided by Industrial Design protection?
When an industrial design is protected by registration, the owner is granted the right to prevent unauthorised copying or imitation by third parties. This includes the right to exclude all others from making, offering, importing, exporting or selling any product in which the design is incorporated.
What can be registered as an Industrial Design?
As a general rule, to be able to be registered, a design must meet one or more of the following basic requirements, depending on the law of the country:
-The design must be “new”. A design is considered to be new if no identical design has been made available to the public before the date of filing, or the application for registration.
-The design must be “original”. A design is considered original if it has been independently created by the designer and is not a copy or an imitation of existing designs.
-The design must have “individual character”. This requirement is met if the overall impression produced by a design on an informed user differs from the overall impression produced on such a user by any earlier design which has been made available to the public.
Traditionally, protectable designs relate to manufactured products such as the shape of a shoe, the design of an earring or the ornamentation on a teapot.
In the digital world, however, protection is gradually extending in some countries to a number of other products and types of design. These include electronic desktop icons generated by computer codes, typefaces, the graphic display on computer monitors and mobile telephones, etc.
What cannot be protected by Industrial Design rights?
Designs that are generally barred from registration in many countries include the following:
-Designs that do not meet the requirements of novelty, originality and/or individual character.
-Designs that are considered to be dictated exclusively by the technical function of a product; such technical or functional design features may be protected, depending on the facts of each case, by other IP rights (e.g. patents, utility models or trade secrets).
-Designs incorporating protected official symbols or emblems (such as the national flag).
-Designs which are considered to be contrary to public order or morality.
In the next write up I will explain the process of registering and obtaining an Industrial Design Certificate.
-Aleck Ncube is an Intellectual Property Scholar. He can be contacted on [email protected] or follow me on Twitter: @aleckncube
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