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Industrial design is one form of protection available in order to protect works related to design. However, not all designs are protected. To get an overview of industrial design, below is a list of basic information on industrial design.
- What is Industrial Design?
- What are the benefits of an Industrial Design?
- What is the validity period of an Industrial Design?
- Where can I enforce my Industrial Design?
- Can an Industrial Design be applied jointly?
- What is the consequence if I do not register my Industrial Design?
- When can I start to use my Industrial Design?
What is Industrial Design?
INDUSTRIAL DESIGN is concerned with the non-functional nature and appearance of objects; i.e. the appearance of the whole or a part of a product resulting from the features of the lines, contours, colours, shape, texture or materials of the product or its ornamentation. The term “design” covers a wide range of areas from industrial design, graphic design, costume design, fashion design, and product and packaging design.
What are the benefits of an Industrial Design?
A registered industrial design confers the owner of a registered design the exclusive right to make, import or sell or hire out any article to which the design has been applied. It also allows the owner of a registered design to stop others from infringing his/her rights. Others who wishes to use the same design must first approach the owner for permission to use the same design. Otherwise, they may be sued by the owner for infringement.
What is the validity period of an Industrial Design?
The duration for protection conferred under the industrial design Act is 5 years initially. This term is renewable for another 5 years up to a total of 25 years. The industrial design will then lapse at the end of the 25 years from the date of application. Thereafter, any persons who wishes to use the same industrial design may do so without the permission of the owner.Unlike trade mark which can be renewed indefinitely, a successful industrial design registration only has protection up to 25 years.
Where can I enforce my Industrial Design?
Registered industrial design are protected in countries where the protection was sought. Therefore, an industrial design which was applied and thereafter registered in Malaysia is only protected in Malaysia . In order to cover designs in other countries, applicants may apply for registration in any one of the member countries which is part of the Paris Convention. Here, applicants who wishes to do so, must file the application within six month from the earliest date it was filed in the other member country under the Paris Convention.
Can an Industrial Design be applied jointly?
The owner of the design may make an application for registration of an industrial design. Once an application is done, the owner is allowed to assigned the industrial design to a company or another person. Where an applicant’s ordinary residence or principal place of business is outside Malaysia, the applicant shall appoint an agent registered in the Register of Industrial Designs Agent.
What is the consequence if I do not register my Industrial Design?
Similar to trade mark, if you do not register your industrial design, anyone would be able to use your design without your permission. You cannot stop them from using it as any industrial design is considered to have been disclosed to the public in Malaysia and is not new if the public is aware of it before the application date.
When can you start to use your Industrial Design?
Any design which have been applied for registration at the respective registry, the owners may start to exploit the design in Malaysia and foreign markets while waiting for the certificate to be issued.
What are the requirements for a work to be an Industrial Design?
The main requirement for an industrial design to be registrable is that the design must be new at the date of application. It must be new in the sense that it has not been made available or disclosed to the public in any way. Unlike patent whereby the disclosure must not be disclosed to the world, for industrial design, the disclosure refers only to disclosures in Malaysia.
The designs of certain types of article are specifically excluded from design registration. An industrial design is not registrable if it falls under one of the following category:
- the aesthetic appearance of an articles is not significant or the design features differs only in immaterial details;
- it is a method or principle of construction;
- the designs are contrary to public order or morality;
- the designs of the articles concern exclusively with how an article functions; and
- the designs of articles that are integral parts of other articles and whose features are dependent upon the appearance of other article.
In summary, this has created 4 requirements for registrability /protection for industrial design:-
1. The design must come within the definition of “design”;
2. The design must be “new” and have “individual character”
3. The design must not be purely functional
4. The design must not be contrary to public policy/accepted principles of morality.