An industrial design is the ornamental or aesthetic aspect of an article. The design may consist of three-dimensional features, such as the shape or surface of an article, or of tow dimensional features, such as patterns, lines or color.
Indeed, an industrial design usually refers to physical shape of a product, like the shape of a bottle, outer design of a car.
Furthermore, an industrial design could protect an original design or shape of shoes. In contrast, a change in the functionality of an article or in the materials used to manufacture an article are not aspects which are eligible for industrial design protection.
Registering an industrial design may grant the following benefits:
1. For business owners, an industrial design registration may be a valuable business asset. The success of a product is usually influenced by its appearance; in an aesthetic-driven consumer base, the looks of a fashionable product looks can often be equally or more important than its functionality.
2. Obtaining exclusive rights to a product with a particular appearance may result in a substantial return on the investment because it will allow you to prevent others from reproducing a popular design.
3. An industrial design registration in Canada gives you exclusive rights to the commercial production, marketing and sale of your product for ten years. It also prevents your competitors from importing a product that copies or very closely resembles your design into Canada.
4. If your industrial design is infringed upon, you may bring your case to court and be awarded damages for the lost sales you have incurred as a result of the infringement of your design registration. This allows you to focus on establishing products based on superior industrial design without worrying about knockoffs from competitors who can produce items cheaper or who can scale their manufacturing quicker.
5. An industrial design registration can also be sold or licensed to others. If you do not want or do not have the capability to produce the product protected by your industrial design, you may be able to sell or license your design to another and earn a royalty on their sales.
6. Further, your industrial design registration can help you establish goodwill in the trademark sense in a particular shape and appearance of the article, which is referred to as its get-up in trademark law. Having sufficient reputation in the get-up of a product becomes a separate ground for excluding others from copying your design.
7. The period of exclusivity provided by an industrial design registration allows your reputation in the design to build and then potentially provide those protectable trademark rights that can extend indefinitely if sufficient reputation in the get-up is maintained.
A genuine industrial design or new design that is created independently, are eligible for protection under laws of Afghanistan.
Furthermore, Industrial designs are applied to a wide variety of products of industry and handicraft items: 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.
Article 6 of the Law provides an explanation concerning the application:
An application for registration of industrial designs can be submitted to the Central Business Registry by the owner of designs or by his/her legal representative using a special form prepared by the registry office.
The owner of a design may be the First Designer/Inventor of an industrial design. Generally, we can say the rights to registration of an Industrial Design belong to the Creator.
1. Conditions for eligibility:
Article 5 of the law explains the main conditions for a design to be eligible for protection:
Article 5(1) “An original or new industrial design that is created independently, is protected according to provisions of this law. (2) Textile design that meets the requirements of protection, can be protected.”
The above provision outlines the basic condition of protection(eligibility):
1. Designs must be original.
2. Designs must be New.
3. Designs must be created independently.
Being new and original means Novelty and Originality:
Novelty/New: In general, an industrial design is considered to be new or novel if it has not previously been disclosed to the public anywhere in the world by publication in tangible form or by use or in any other way.
Original: Designs may be considered original if it significantly differs from known designs or combinations of known design features.
2. Obstacles of eligibility:
There are several obstacles, from a legal point of view, that may arise when seeking protection for a Design, including the following:
Misleading Designs: Pursuing the article 7.1 of the Law, the ACBRIP will avoid to register Designs that could be similar to the previous registered designs in a way that could mislead people.
Methods/principles: If a design is used for practical or technical considerations or the method of architectural and construction principles, could not be registered.
Public order and morality: An industrial design that is contrary to public order or morality is not registrable.
Article 21 of the law provide the main terms of protection for a registered design in Afghanistan, that is to say:
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.
The registration of industrial designs in Afghanistan requires the applicant or its representative to file an application in registry office:
CONTENT OF APPLICATION:
1. The name and address of the Owner(s), if there are several owners, the name of main designer/inventor.
2. The address of central office or place of business in Afghanistan, if any; and in case of non-existence of such an office or place of business in Afghanistan, the name and address of the Responsible Authority’s legal representative in Afghanistan;
3. Drawing and images of industrial Design.
4. An explanation of industrial design for which registration is sought.
5. If the design is registered in a foreign country, Date, place of issuance and the registration number in the foreign country where the same design is registered.
6. Explanation regarding that the design is not used previously by any other person.
7. The payment receipt of application fee, based on the prescribed procedures.
8. Date and signature of the applicant.
9. Other necessary information, in accordance to the relevant regulations/procedure.