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| Ifeoluwa Badejo |
Industrial design in its simple definition is fundamentally an expression of style or form that is unique, distinct from a known or already existing work of art. Therefore, for the purpose of the flourishing and increase in the innovations and new creations of designs and ideas, there is a need to protect the innovations, new creations of designs and ideas, even though not in its entirety but a quantum of it. Industrial Design is not about the external appearance of an article, design or material but in its peculiarities, distinctiveness, and significance or striking appearance and how it is appealing to the eye.
In this paper, the search light is beamed
on the beauty of industrial designs in Nigeria, its registration process and
how long it takes for a creator of an industrial design to enjoy some
exclusiveness, that is, its duration.
Industrial Designs may be described as
any combination of lines or colours or both, and any three dimensional form
whether or not associated with colours, provided
it is intended by the creator to be used as a model or pattern to be multiplied
by industrial process and not intended solely to obtain a technical result.1
NOTE that an industrial design is not just the combination of lines or colours
but must also include compulsorily, any three dimensional form which may or may
not be associated with colours.
Briefly, let us examine the history of
Industrial Designs in Nigeria and how it was received in Nigeria which has now
become recognized in the country. It is pertinent to state that like Copyright
law, Trademark and Patents law, the roots of industrial designs law in Nigeria
was from the received English law. The United Kingdom Designs (Protection) Act
was the law regulating industrial design in Nigeria; however, the existence of
the 1970 Act repealed the United Kingdom Designs (Protection) Act and provided
for the original registration of industrial designs in Nigeria. The major aim
of the law is to protect a design that is new or essentially new inventions,
so, when many consumer products are technically very similar, designs becomes
so important and a distinguishing factor.2As the law developed, the
right of owner of the registered designs was treated as good against the entire
world. Therefore, the design had to be shown to be novel at the priority date
of the application and the application was subject to an examination before
registration. Therefore, a proprietor of an industrial design who was desirous
of registering the industrial design had to apply to do so in the United
Kingdom under the Registered Designs Act of 1949, this is before the
promulgation of the Patents and Designs Act of 1970.
The law of industrial designs protects
the outward or aesthetic appearance of products. The protection of industrial
designs is afforded by law in its recognition of the importance of visual
appeal to customers/ consumers in the choice of products.3 This aids
consumers/ customers in knowing which product is which and not going for an
entirely different product as a result of a striking similarity between the
product selected/bought and the product the consumer/ customer thought / thinks
he bought/ buys.
REGISTRATION
OF INDUSTRIAL DESIGNS
First, not all industrial design is
registrable. However, for an industrial design to be registrable in Nigeria
under the Nigerian law, some conditions must be fulfilled which are;
1. The
Industrial Design must be new; and
2. The Industrial
Design must not be contrary to public order or morality.4
Upon application for the registration of
an industrial design, the industrial design would be presumed to be new except
provided or shown otherwise. One of the ways in which an industrial design
sought to be registered would not be presumed to be new is when it appears to
the Registrar that the industrial design sought to be registered has been made
available to the public anywhere and at any time by means of description or use
or even in any way made available to the public.5
Exceptions to the general rule of newness
and not been made available to the public includes;
(a If within the
period of six months immediately preceding the application for registration of
the industrial design, the creator had exhibited it in an official or
officially recognized exhibition, such exhibition shall not be presumed to have
been made available to the public. 6 Such exhibitions may be
Government organized or approved trade fairs. In this instance, the industrial
design still satisfies the condition of newness. If the creator of the
industrial design shown to the satisfaction of the Registrar that he is not
aware neither could he have known that the industrial design was already made
available to the public.7
The newness of an industrial design goes
to the extent of its distinctiveness, not merely in its minor or inessential
distinctiveness or difference with an already existing and registered
industrial design. This means that if a creator applies for the registration of
his industrial design, the Registrar would examine the industrial design if it
is similar in its uniqueness, distinctiveness or its essential features with an
already existing and registered industrial design. If this is the case, the
Registrar may not register the subsequent industrial design.
As it was stated earlier, not all industrial designs are registrable. According to Babafemi, the following designs are not registrable.
Wall plagues
2. Medals
3. Works of
Sculpture other than casts or models used or intended to be used as models or
patterns to be multiplied by an industrial process.
4. Printed matter of
a literary or artistic character, including calendars, book jackets,
certificates, coupons, greeting cards, leaflets, maps, plans, dress making patterns,
stamps and the likes…8
However, in my opinion some of the items
stated above may be registered as industrial design, for example dress making
patterns may be registered as industrial design, as there are some patterns
that are unique to a maker or creator of his or her work of art.
DURATION
OF INDUSTRIAL DESIGNS
In 1787, The Designing and Printing of
Linens, Cottons, Calicoes and Muslins Act, 1787, gave the printers, designers,
inventor of any new and original pattern exclusive rights of exploitation for
two months only. In 1794, the duration of protection was extended to three
months of exclusive exploitation by the printers, designers, inventor of any
new and original pattern. This era, the protection was given in response to the
needs of textile industry.
The registration of an industrial design
shall be effective in the first instance for five years from the date of
application for registration and upon the payment of the prescribed fees, it
may be renewed for two further consecutive periods of 5 years. What this means
is that initially, upon the application for registration and its registration,
the duration of exclusiveness and exploitation to its creator is 5 years while
subsequently upon the payment of the prescribed fee, the exclusiveness and
exploitation of the industrial design may be renewed for 10 years, making a
total of 15 years.
However, the prescribed fee should be
paid within 12 months immediately preceding the renewal period/ the date of
expiration of the initial 5 years. Although, a period of 6 months is usually given
as a grace, after the beginning of the renewal period, that is, after the
expiration of the 12 months immediately preceding the renewal period, for the
payment of the prescribed fee for the renewal of the duration of the industrial
design. Thereupon, it shall be deemed upon the payment of the prescribed fee
within the 6 months grace that the creator has complied with the provisions of
the law on renewal. The registration, expiration and renewal of an industrial
design shall be registered and notified.9
1. Section
12 Patents and Designs Act CAP P2, LFN, 2004
2. Babafemi F.O. Intellectual Property; The Law and practice
of Copyrights, Trademarks, Patents and Industrial Designs in Nigeria
(listed, Ibadan, Justician Books Limited, 2007) P. 412
3. Akanki E. O. Commercial Law in Nigeria (Revised
Edition 2007) P. 485
4. Section 13 (1)
(a) & (b) Patents and Designs Act, CAP P2 LFN, 2004, Sunday Uzokwe Vs.
Densy Industries (Nig) Ltd & Anor (2002) M.J.S.C 37
5. Chukwumereije and
Sons (W/A) Ltd v. Patkun Industries Ltd and Sons (1989) FHCLR 423, in this
case, the court held that the design in dispute which is shoe soles, was not
new as it had already been sold to customers prior to the application for
registration. Similar is the case of Iyeru Okin Plastic Industries Ltd v.
Metropolitan Industries (Nig) Ltd. (1986) FHCLR 336
6. Section 13 (4) Patents
and Designs Act, CAP P2 LFN, 2004
7. Section 13 (3)
Patents and Designs Act, CAP P2 LFN, 2004
8. Babafemi F.O. Intellectual Property; The Law and practice
of Copyrights, Trademarks, Patents and Industrial Designs in Nigeria
(listed, Ibadan, Justician Books Limited, 2007) P. 428
9. Section 20
Patents and Designs Act, CAP P2 LFN, 2004
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