Industrial Design

 

Industrial Design

Introduction

Intellectual property (IP) pertains to any original creation of the human intellect such as artistic, literary, technical, or scientific creation. Intellectual property rights (IPR) refer to the legal rights given to the inventor or creator to protect his invention or creation for a certain period of time.

1)    These legal rights confer an exclusive right to the inventor/creator or his assignee to fully utilize his invention/creation for a given period of time. It is very well settled that IP play a vital role in the modern economy. It has also been conclusively established that the intellectual labor associated with the innovation should be given due importance so that public good emanates from it. There has been a quantum jump in research and development (R&D) costs with an associated jump in investments required for putting a new technology in the market place.

2)    The stakes of the developers of technology have become very high, and hence, the need to protect the knowledge from unlawful use has become expedient, at least for a period, that would ensure recovery of the R&D and other associated costs and adequate profits for continuous investments in R&D.

3)    IPR is a strong tool, to protect investments, time, money, effort invested by the inventor/creator of an IP, since it grants the inventor/creator an exclusive right for a certain period of time for use of his invention/creation.

Nature of Intellectual Property

The word "property" is used to describe this value, because the term applies only to inventions, works and names for which a person or group of persons claim ownership. Ownership is important because experience has shown that potential economic gain provides a powerful incentive to innovate.

The nature and meaning of Intellectual property rights can best be described as intangible property rights or rights in ideas. As a WIPO publication explained:

"The history of the human race is a history of the application of imagination, or innovation and creativity, to an existing base of knowledge in order to solve problems. Imagination feeds progress in the arts as well as science. Intellectual property (IP) is the term that describes the ideas, inventions, technologies, artworks, music and literature, that are intangible when first created, but become valuable in tangible form as products. Suffice it to say that Intellectual property is the commercial application of imaginative thought to solving technical or artistic challenge. It is not the product itself, but the special idea behind it, the way the idea is expressed, and the distinctive way it is named and described.

Intellectual property law dates at least as far back as medieval Europe. In those times, "guilds," or associations of artisans in a particular industry, were granted authority by the governments to control the regulation and conduct of the various industries. These guilds exercised control over what items could be imported, marketed and produced and the manner in which new inventions, devices and procedures could be introduced to the stream of commerce. Because the authorities for these guilds were given by the governments, and because they concentrated the power to regulate an industry in a select few, and were not earned by innovation, skill or creativity, these guilds did far more to stifle creativity and invention than to encourage it.

Definition of Intellectual Property

Intellectual property is any innovation, commercial or artistic or any unique name, symbol and logo design used commercially.

The Stockholm Convention, which established the World Intellectual Property Organization, states that Intellectual property includes the rights relating Literary, artistic and scientific works, Performances of performing artists, phonograms, and broadcasts, inventions in all fields of human endeavor, scientific discoveries, industrial designs, Trademarks, service marks, and commercial names and designations, protection against unfair competition Layout-design (topographic) of integrated circuits, protection of undisclosed information.

Intellectual property rights are the right given to persons over the creation of their minds. They usually give the creator an exclusive right over the use of creation for a certain period of time. The creator or owner of a patent, trademark or copyright is to benefit from his or her own work or investment. These rights are outlined in Article 27 of the Universal Declaration of Human Rights. It set forth the right to benefit from the protection of moral and material interests resulting from authorship of any scientific, literary or artistic production.

Categories of Intellectual Property

Intellectual property is divided into two categories

1)    Industrial property

2)    Copyrights

Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recording and those of broadcasters in their radio and TV programs.

Industrial property

The industrial property includes: -

1)    Trademarks

2)    Geographical Indications

3)    Industrial Designs

4)    Patents and

5)    Layout-design (topographic) of integrated circuits

Definition of Industrial Design

Industrial designs are what make a product attractive and appealing; hence, they add to the commercial value of a product and increase its marketability.

When an industrial design is protected, this helps to ensure a fair return on investment. An effective system of protection also benefits consumers and the public at large, by promoting fair competition and honest trade practices. Protecting industrial designs helps economic development, by encouraging creativity in the Industrial and manufacturing sectors and contributes to the expansion of commercial activities and the export of national products.

Important of Industrial Design

Industrial design is a strategic problem-solving process that drives innovation, builds business success, and leads to a better quality of life through innovative products, systems, services, and experiences.

By focusing on the aesthetic and functional aspects of products, industrial design enhances user satisfaction and creates emotional connections between the product and the user.

Moreover, industrial design rights protect the unique appearance of products, ensuring that creators maintain exclusive rights and preventing unauthorized copying or imitation.

Incorporating industrial design into product development not only improves usability and aesthetics but also provides legal protection and contributes to business success.

Ownership of Industrial Design

Generally, the author of an industrial design will be treated as the original owner of the industrial design. However, if an industrial design is created in pursuance of a commission for money or money's worth, the person commissioning the industrial design will be treated as the original owner of the industrial design.

Where, in a case not falling within the above definition, an industrial design is created by an employee in the course of his employment, his employer will be treated as the original owner of the industrial design.

The original owner of an industrial design or the assignee of any interest in an industrial design may assign in writing to another person the whole or any part of his interest in the industrial design.

Where an industrial design, or the right to apply an industrial design to any alticle, becomes vested, whether by assignment, transmission or operation of law, in any person other than the original owner, either alone or jointly with the original owner, that other person or, as the case may be, the original owner and that other person shall be treated as the original owner of the industrial design in relation to that article. In the case of an industrial design generated by computer in circumstances such that there is no human author, the person by whom the arrangements necessary for the creation of the industrial design are made shall be taken to be the author.

Industrial Design Rights

The owner of a registered industrial design has the exclusive right to make or import for sale or hire, or for use for the purposes of any trade or business, or to sell, hire or to offer or expose for sale or hire, any article to which the registered industrial design has been applied.

The rights of an owner with respect to a registered industrial design are personal property and are capable of assignment, in writing, and transmission by operation of law.

The owner of the registered industrial design has the right to institute legal proceedings against any person who has infringed any of the rights conferred by the registration of the industrial design. However, such proceedings must be instituted within five (5) years from the act of infringement.

Protection of Industrial Design

Protection of industrial designs is an essential aspect of intellectual property law. Industrial designs refer to the aesthetic or ornamental aspects of an article, which can include the shape, pattern, or color of a product. These designs are crucial in making products attractive and appealing to consumers.

1.     Registration: To protect an industrial design, it typically needs to be registered with the relevant intellectual property office. This process involves submitting an application, which includes a detailed description and images of the design.

2.     Rights Granted: Once registered, the owner of the industrial design is granted exclusive rights to use the design and prevent others from copying or imitating it without permission. These rights usually last for a specific period, often up to 15 years, depending on the jurisdiction.

3.     Scope of Protection: Protection is generally limited to the visual appearance of the product and does not cover its functional aspects. This means that the design must be new and original, and it should not affect the product's functionality.

4.     International Protection: For protection in multiple countries, designers can use international agreements such as the Hague Agreement, which allows for the registration of industrial designs in multiple jurisdictions through a single application.

By protecting industrial designs, businesses can ensure that their products stand out in the market, enhance brand recognition, and prevent competitors from copying their unique designs.

Industrial Design in Myanmar

There is no practical position of protecting patents and design per se in Myanmar although there has been the Science and Technology Development Law since 1994. The Ministry of Science and Technology was newly established in Myanmar as the focal point ministry, but, till now, there has not yet been Myanmar Patent Office.

At the present, the Industrial Design Law has been enacted on 30* January 2019 by Law no.2/2019. In this law, there are 26 chapters and 87 sections.

In this interim period, design may be registered under section 18(f) of the Registration Act. A design may be registered with the Registry of Deeds and Assurances by means of declaration which is a solemn statement of facts made by the patent owner. Publication of cautionary notice in a local designated newspaper based on registration is the sole process to remind the public for any possible passing-off and infringement of the right of design ownership during the period of lack of promulgated law, rules and regulations involved.

Conclusion

The protection of industrial designs is a vital aspect of intellectual property law that safeguards the aesthetic and ornamental aspects of products. By registering and securing exclusive rights to their designs, creators and businesses can ensure their unique creations are protected against unauthorized copying and imitation. This protection not only enhances brand recognition and market appeal but also promotes innovation and creativity in product development.