An industrial design is a form of intangible property and one beautiful feature about it is that when these works are made they are intended by the author to be used as models or patterns to be multiplied by any industrial process.
Industrial Design is one very complicated aspect of Intellectual Property. But for proper guidance, the provisions of the Nigeria law will be used
The governing law for industrial design rights in Nigeria is the *Patent and Designs Act*.
According to the Act, particularly Section 12, the following is said about industrial designs:
“Any combination of lines or colours or both, and any three-dimensional form, whether or not associated with colours, is an industrial design, if it is intended by the creator to be used as a model or pattern to be multiplied by industrial process and is not intended solely to obtain a technical result.”
Now this definition has a couple of elements, just as any definition in law.
Accordingly, this right only protects the aesthetic appearance of a design.
This is very important as Industrial design rights does not cover those designs that have been intended to improve functionality/a technical result.
If the shape of this bottle was made with no intention to improve the product (the drink) in any way, then it can be registered under Industrial designs.
But once it has been intended that the shape improves the functionality or technical result (for example, that the shape increases effervescence (bubbles and gas) in the drink), it will no longer fall under Industrial Designs, but Patents…
So a design alone, without functionality can be protected under Industrial Design while those with a functionality or technical result will be registered under Patents instead.
2. The Nigerian Patents and Designs Act allows for the registration of 2 different types of designs:
Combinations of lines or colours or both (for example, Textile Designs) &Three-dimensional designs (for example, product packaging)
The combination of lines or colours or both could include two dimensional designs: *Two Dimensional design*: It’s a flat shaped design with two dimensions, which includes length and width.
*Three Dimensional design*: This will include width, height and depth or thickness. Cubes, prisms, pyramids, spheres, cones, and cylinders are all examples of three-dimensional objects. Three-dimensional objects can also be rotated in space.
3. Finally, such design might involve colors or otherwise.
Conditions for Registrability
an industrial design is registrable if
1. it is new; and
2. it is not contrary to public order or morality
that is it must be original and novel. In general, an industrial design is considered to be new or novel if it has not previously been disclosed to the public and it may be considered original if it significantly differs from known designs or combinations of known design features.
The second part of the requirements might be very controversial; addressing what will suffice as “contrary to public order or morality”.
But basically any design which will contravene the provisions of the Constitution, Criminal Code, Penal Code and other laws will not be pull through.
One other requirement is that it must be intended by the inventor that the design will be recreated for commercial purposes.
It is also important that such design is mechanically made. This is why it’s called INDUSTRIAL DESIGN. Therefore, handicrafts will not suffice as industrial designs (designs mainly or entirely made with the bare hands). However, an industrial design could be partially hand made, but it’s noteworthy that the bulk of the work must have been mechanically done.
So for instance, a particular elegant tie is mechanically made but the final stage, which involves embroidery, is hand made. Such tie could suffice as industrial design.
That being said, it’s important to state that the owner of a registered industrial design has the right to prevent third parties from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design, when such acts are undertaken for commercial purposes.
Industrial designs are applied to a wide variety of products of industry from packages and containers to furnishing and household goods, from lighting equipment to jewelry, and from electronic devices to textiles. Industrial designs may also be relevant to graphic symbols, graphical user interfaces (GUI), and logos too.
Prepared by Tayo Fabusiwa