A registered design gives protection to the shape of the product e.g. lines, colors or any three-dimensional form. The idea is to prevent others from reproducing the external design of the product for industrial use. The owner of a registered design can prevent others from reproducing, importing, illicitly profiting, selling or utilizing for commercial purposes by reproducing the design.
Industrial design focuses on aesthetic value and nature of a finished product, it does not protect the technical or functional features of the product and it is distinct from any technical or functional aspects. A registered design is protected for a period of 5 years from the date of the application for registration. Protection may be renewed for two further consecutive periods of 5 years. The Trademarks, Patents and Designs Registry domiciled in the Commercial Law Department of the Federal Ministry of Industry, Trade and Investment is saddled with the responsibility for registration of industrial design.
REQUIREMENTS FOR PROTECTION OF INDUSTRIAL DESIGN
- The design must be "new." A design meets the newness criteria if no identical design has been made available to the public before the date for application for registration.
- The design must be "original." Designs are considered as 'original', if they have been independently created by the designer and are not a copy or an imitation of existing designs. If the design simply makes minor changes to an earlier design, it will not be considered as a new design and as such, it will be ineligible for design protection.
- The design must not be dictated exclusively by the technical function of the product. If this is the case, the design registration is not the appropriate form of intellectual property. A more relevant application would be a patent application.
- The design must not include protected official symbols or emblems such as the national flag, the coat of arms etc.
- The design must not be one which is considered to be contrary to public order or morality. The right to the registration of a design is vested in the person who is the first to file an application for the registration of the design.
REGISTERING INDUSTRIAL DESIGN
In order to register a design in Nigeria, there are a number of steps an applicant must first take: The applicant must consider whether or not the design is new.
- The applicant must not publicize the design before seeking to register the design.
- The applicant must provide a specimen of the design.
- The applicant must also provide basic information including the name of the applicant, address, an indication of the kind of products associated with the design, and the title of the design.
- The applicant will also be required to pay the application fee and other professional fees.
- A Power of Attorney, if application is being made by an agent.
- Certified copy of the priority document if claimed.
- Once the application is filed with all the supporting documents then the Registrar will cause to issue an Acknowledgement Notice confirming the receipt of the application.
- Examination and Acceptance
- Then an examination of the application to ensure the formal requirements are met and that the design does not contravene public order or morality. If the application meets the requirements then an Acceptance Notice will issue. Otherwise, a refusal notice will be issued.
- Approval of registration
Once the design application has been accepted, the design is the registered and a registration certificate will be issued and a duplicate of the design certificate will be included in the Register of Industrial Designs.
There is an urgent need to amend the Patent and Designs Act to be more relevant with modern trend. The current framework is not clear on how reverse engineering could affect the enjoyment of the intellectual property rights. Owners of rights are encouraged to commercialize their innovation by utilizing available intellectual property management mechanism.
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.