Industrial design 

Industrial design is the: appearance of the whole or part of a product resulting from the features of, in particular, the lines, contours, colors, shape, texture or materials of the product itself or its ornamentation.

types of industrial design: design, artistic models and drawings, registered or not

conditions to be met: appearance (general appearance received by the final user, not technical aspect), novelty, singular character

Application for registration:

• application form: graphic description of the product, the identification of the applicant, the product and its classification
• ex officio exam and examining the novelty and description
• revision by OEPM
• publication
• opposition to the registration by third parties

Rights conferred by the design

• NON registered design: not to be copied, for 3 y
• registered design: the exclusive right to use and prohibit its use by other without their consent
• term of protection: 5 y, renewal for 5 y periods to a max of 25

LIMITS:

Art.48: When used for: private acts with non commercial purpose, experimental purpose, illustrative or teaching purpose, equipments and repairs of ships and aircraft protected out of Spain, while in Spain for repair

Art. 49 exhaustion of rights: the rights shall not extended to product incorporating designs when the product has been put on the market in the EEA by the owner or with his consent

REMEDIES FOR INFRINGEMENT

• civil and criminal actions
• civils:
  • cessation of acts that violate
  • compensation for damages
  • measures to prevent continuation of infringement
  • destruction humanitarian assignment
  • the publication of the judgement

An industrial design refers to “@@the ornamental or aesthetic aspects of an art”@@.

Industrial designs have ^^hybrid^^ character: industrial property + copyright.

Industrial Designs refers to aesthetics and usability of mass-produced products, that makes them attractive to the eye and improves its marketability. It is an expanding and ever more used area and is expected to become much more utilized by industry in the future, having substantial cost advantages over patents.

Industrial designs merit copyright protection and they are registerable industrial property rights.

Industrial design law can protect such diverse articles as the shape of the sole of a shoe, an attractive mass-produced lamp, aspects of a car, technical and medical instruments to watches, jewelry and other luxury items, house wares and electrical appliances to vehicles and architectural structures; also, textile designs and leisure goods…

The system which now operates in Spain provides protection as opposite to the article in which it is incorporated. So protection is conferred for the design across any product to which it is applied. The system has changed over a few years as a result of the Directve 98/71/CE and we can find it in the Law 20/2003 of 7 July, on Legal Protection of Industrial Designs (ley para la protección del diseño industrial)

Design is defined as the appearance of the whole or part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product itself or its ornamentation.

In order to be registerable a design must be @@new@@ and have i@@ndividual character@@.

The design is new if no design is identical to it or has been previously made available to the public before the filing date for registration (Art. 6 LDI).

A design has individual character if the overall impression it produces on an informed user differs from the overall impression produced on by a design which has been available to the public before the filing date of the application for registration (Ar.t 7 LDI).

The design right gives the owner the exclusive right to use the design and authorize others to use it including the right to make, offer, put on the market, use the product and to patent shall give its owner the right to prevent others from using it without his consent (art. 45 LDI).

The infringement of the right gives the holder the possibility to issue proceedings in the court and he may seek for:

• cessation of the acts that infringe his rights;

• compensation for the damage and prejudice suffered;

• seizure of the objects produced or imported in infringement of his rights;

• whenever possible, attribution of the ownership of the objects and means seized;

• the adoption of the necessary measures to prevent continued infringement of the design;

• and publication of the judgment against the person infringing the design (art. 53LDI).

  Compensation fordamage shall cover not only the losses suffered but also the gains which the design holder has failed to obtain as a result of the infringement of his right.

The design right lasts for a maximum period of 25 years in total, which consists of five yearly renewable periods (art. 43 LDI). If the design has not been renewed it lapses.

To be protected, the industrial design must be new or original (unique) and non- functional.

This means that an industrial design is primarily of an aesthetic nature, but has no further purpose (any technical features won ́t be protected unless they are patented). Industrial designs are ==what make an art attractive and appealing.==

Industrial designs are regulated in Spain by Law 20/2003 of July 7 on Industrial Designs.