Lesson 5: How are Industrial Designs Protected and for How Long?
Industrial designs sit at the intersection between patents and copyright. In substance, industrial design law is akin to copyright in that it protects the artistic or aesthetic elements of functional articles, not the functional articles themselves, which would be protected by patents. However, in order to obtain protection, most jurisdictions have adopted tests and formalities that are similar to those for patents.
In other words, unlike copyright, which does not require registration, industrial design protection generally does require registration after a formal administrative examination process is conducted.
The tests vary among countries but the general scope of the examination is to determine whether the design is ‘new’ or ‘novel’, whether it is not ‘obvious’, whether it is ‘fit for industrial application’, whether is has ‘individual character’ and is not ‘common place’, whether it has ‘eye appeal’.
Think of Andrew’s POLAR pen as an example of a simple product with considerable ‘eye appeal’ which was successfully registered as an industrial design in the European Union.