Industrial design like other intellectual property rights needs protection. The aim of industrial design is to provide added value for the product it is related to. Aesthetic design of the product makes it more attractive for consumers andas its unique feature contributes to the growth of sales volume; therefore the protection of valuable industrial designs should be an essential part of the manufacturer's business strategy. In this article we will review the basics of registration of an industrial design in Belarus.
The term "industrial design" according to the legislation of the Republic of Belarus
According to Article 1000 of the Civil Code of the Republic of Belarus industrial design is an art or art-design solution of a product making up its appearance.
Considering the industrial design in terms of its use in everyday life we assess the appearance of the product and its functionality. In business producing a new product involves the development of its functional and aesthetic features; at the same time such issues as the possibility of realization of the product on the market, the cost of manufacturing, transportation, storage etc. are also taken into account. In terms of intellectual property rights industrial design (design of the product) is assessed proceeding only from the decorarive or aesthetic aspect of the product.
The procedure of registration of an industrial design
Before talking about the protection of an industrial design it should be noted that legislation of many countries (including the legislation of the Republic of Belarus) does not provide legal protection of the solutions contradicting public interests, the principles of humanity and morality; are conditional only on technical functions; refer to objects of architecture (except for small architectural forms), printed products, objects in labile form of liquid, gaseous, granular and similar substances.
By protecting an industrial design through its registration in the national and regional intellectual property offices and therefore strengthening its competitiveness you can prevent its copying or imitation by the competitors; registration of industrial designs encourages fair competition, which stimulates the production of a wide range of aesthetically attractive products. Since the industrial design can be considered as a business asset which can potentially increase the commercial value of the company and its products, its registration will provide profitting from investments in the creation and marketing of products of the relevant design and thereby will increase profits of the company.
The primary individuals of patent rights for an industrial design can be juridical and physical persons who are given a patent with their name or the name of the organization. These individuals are designers of industrial designs -physical persons contributed to the development of industrial designs; employers of designers of industrial designs; the persons referred to by the designers in the patent application; the successors of the persons mentioned above. Protected industrial design can also be the subject of license (or concession) in favor of other persons for a set fee. One more advantage of the license is that you get an opportunity to take niches in the commodity markets, which otherwise would be unavailable for you.
In order to be registered, an industrial design shall meet one or more of the following requirements (depending on the legislation of the country), i.e. meet the conditions of patentability:
Design shall be novel. Industrial design meets the requirement of novelty, if the whole set of its essential features is not known from information became generally available in the world before the date of priority of the industrial design. In the European Union, the industrial design is considered new if before sending the application for registration an identical industrial design is not presented to the public, and industrial designs are considered identical if they differ only in inessential details;
Design shall be original. The requirement of originality provides, in particular, that ideas representing an imitation of other industrial designs(i.e. inessentially changed) are not recognized as original. In some countries, an industrial design must be "individual". This requirement is met if general impression made by the industrial design on an acknowledged user differs from general impression made on him by any design known before and available on the market.
In order to be registered in the Republic of Belarus an industrial design shall meet the following conditions of patentability: to be novel and original.
Registration of an industrial design in the Republic of Belarus includes the following procedures:
- fulfill an application form in which you must provide information regarding the designer of the industrial design and the person in whose name the patent is requested, as well as their place of residence or location;
- provide a set of images giving a full and detailed picture of the appearance of the product;
- write a description of the industrial design which includes its essential features (the essential features of the industrial design include features that determine the aesthetic and / or ergonomic features of appearance of the product, its shape and configuration, ornament and color combination);
- pay the established patent fees for application and registration.
Some agencies register industrial designs only after a formal examination in order to make sure that all the formal requirements are met. Other agencies carry out examination of the application in order to find out the industrial designs registered before to indicate the fact of novelty and (or) originality of the industrial design referred to in the application. In the Republic of Belarus registration of industrial designs is made without examination aimed to determine novelty and (or) originality.
After registration the design is included into the State Register of Industrial Designs and published in the Official Bulletin and after that a patent for industrial design is issued. In the Republic of Belarus the information on the patent is published and the patent is given to the owner after 8 - 10 months from the date of sending the application. The patent for an industrial design is valid for 10 years and can be extended for 5 years.
Protection of industrial designs is based on the territorial aspect, i.e. the protection is usually limited to the region where industrial design was registered. If a company exports products which include an industrial design developed before or intends to license the manufacture, sale or export of such products to foreign companies, it is necessary to consider the provision of legal protection of industrial design in these countries.
There are several ways to provide protection of industrial designs abroad:
- National procedure. Companies get protection by sending applications to the patent offices of each country where they intend to apply for protection. The disadvantage of the national procedure is its high cost and long duration as it involves making translation of required documents into national languages, as well as paying different procedural fees.
- Regional procedure. Companies get protection in the countries which are parties of regional agreements valid in several countries allowing to register industrial designs by sending a single patent application to the appropriate regional office.
- International procedure. Companies that want to register industrial designs in several countries may also use the procedures available under the Hague Agreement on the International Deposit of Industrial Designs. The applicant company submits an application to the World Intellectual Property Organization (this organization fulfill the administrative functions of the Hague Agreement on the International Deposit of Industrial Designs), one international application and in this case the industrial design may get protection in those countries of the agreement which he chooses. The advantage of this procedure is the ability to apply for protection simultaneously in a large number of countries with a rather accessible and easy way of application.
Industrial designs are the result of art design which involves different types of development activities. Aesthetic and ergonomic shapes and patterns of products are undoubtedly essential for the commercial success of the company. Therefore, the effectiveness of protection of new and original art and art-design solutions is closely connected to the possibility to prevent economic damage in unfair competition in the market.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.