Special Issue: LESI Design Study

In Canada, industrial design law allows for the protection of a product's physical appearance. While the appearance of a product may also be protected under the Copyright Act, or pursuant to the definition of a "sign" under the Trademark Act, which includes three-dimensional marks, this paper will focus specifically on the concept of industrial designs.

Throughout the last decades, it has been recognized that inventors and companies protect their innovations more comprehensively than in the past, even adequately protecting the appearance of their products. This can be achieved most effectively by way of registered design rights. Fortunately, in our globalized world we have a certain extent of common international standards for obtaining design protection. However, it is to be noted that the specific national requirements, options and procedures still differ to a significant degree, which makes the field of design law very lively and subject to continuous developments.

Patents in China include invention, utility model and design. Design has been incorporated into the patent system since the formulation of the Patent Law in 1984. The concept of the design patent right means aesthetic and industrial shape, pattern of a product, or their combination and those combined with color. The protection of design is on the aesthetic and industrial design of the products, which may be 2D or 3D or a combination.

The history of a design legislation on the European level goes back less than 30 years and started with the presentation of the Green Paper of The Legal Protection of Industrial Design by the European Commission in June 1991. The goal of the Green Paper was to harmonize the (at that time, inconsistent) national design legislations in the member states in order to ensure free internal market conditions within the EU, but also to create a design right having effect throughout the EU. Since then, there have been significant changes: First, the national design laws of the different member states were harmonized to a large extent by means of the Directive 98/71/EC of the European Parliament and of the Council of 13 October, 1998, on the legal protection of designs (Designs Directive). The harmonization particularly concerned the requirements for protection, the scope and term of protection as well as the validity of designs. In addition to the harmonization of the national laws, and after more than 12 years of legislation history, the Council Regulation (EC) No 6/2002 of 12 December 2001 on Community Designs (Community Design Regulation, or CDR) came into force. This autonomous and supranational regulation will be the subject-matter of the present chapter.

In Germany, the first signs of design law emerged in the textile industry in the middle of the 18th century. About a century later, in 1837 and 1845, two federal decisions created the first possibilities for design protection on a copyright basis that were not limited to specific industries. The development finally picked up speed with the Act on Copyright in Patterns and Models of January 11, 1876, which was also called "Aesthetic Models Act" (in German: "Geschmacksmustergesetz"). The term reflected that, historically, designs needed to have a specific aesthetic quality in order to be protectable as an "aesthetic model" in Germany. The Aesthetic Models Act was, apart from minor amendments in 1974, in force for more than 100 years. However, as in copyright law, it only protected the rights owner against the copying of the design. A major change in German design law then took place in 2004, when the German legislator implemented the Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs (Designs Directive) into national law. From this point in time, the rights owner was protected against any unlawful use of his design. Moreover, an aesthetic quality was not a requirement for protection anymore either. Finally, in the course of a further revision of the Aesthetic Models Act in 2014, the term "Registered Design" (in German: "eingetragenes Design") replaced the linguistically outdated term "aesthetic model." Since then, the national law is called "German Design Act" (in German: "Gesetz über den rechtlichen Schutz von Design," short: "Designgesetz").

The protection of design rights was not a reality in India until 1872. During the industrial revolution, production of articles at a mass level became possible, resulting in an imperative need for introduction of legal protection of new patterns and designs.

Good design can raise demand for a products. The design is the appearance of the product, and thus it can easily be imitated by the third party. Therefore, the protection of novel and unique design by law is very important for the development of industry. If such design is to be properly protected by the Design Law, the development of the products with the good and novel design would be stimulated. This leads to the rising of internal and external demand, and consequently leads to the development of industry. That is why the Design Law falls under the industrial property law.

Today, the majority of countries in the world (including Korea) have intellectual property systems that recognize the value of creative intellectual activity and provide creators with a period of exclusive rights. Korea has several IP-related laws, including the Patent Act, Utility Model Act, Design Protection Act, Trademark Act, and Copyright Act. Among these, the Design Protection Act protects newly created industrial designs and provides exclusive rights to use the design by the creator of the design.

The first appearance of design law in the Turkish law system was with the recognition of the Paris Convention in 1925. After that, Professor Ernst Hirsch made a study of protecting designs legally in 1951.

Designs were originally protected as artistic creations under the auspices of copyright law. As society began to recognise value in different forms of artistry, from books to fabrics to fine arts, and as technological developments facilitated copying of these different art forms, the law responded in a piecemeal fashion, conferring copyright protection upon whichever form of design was under threat at the time. See for example, The Designing & Printing of Linen Act 1787.

More than ever, the way a product looks matters. A user's experience with a product—whether the product is a physical item or virtual item such as a website—will strongly influence whether they decide to buy the product. At the heart of this experience is the design of the product, and particularly its ornamental appearance. As Randall Smith has stated, "How you feel, and therefore if whether you're going to engage and buy, is directly influenced by the design of a website, a package or a business card.

As early as 1883, a first big step on the road to help creators protecting their intellectual works in foreign countries was taken with the adoption of the Paris Convention for the Protection of Industrial Property (Paris Convention). The Paris Convention contains provisions dealing with industrial property in the widest sense, inter alia, industrial designs. In 1893, the two secretariats that initially were established to administer the Paris Convention and the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), were united and formed the United International Bureaux for the Protection of Intellectual Property—the predecessor institution of the World Intellectual Property Organization (WIPO). WIPO was then established by way of the WIPO Convention that was signed in 1967 and entered into force in 1970. WIPO is an intergovernmental organization having its headquarters in Geneva, Switzerland and being one of the specialized agencies of the United Nations (UN).