Though many countries provide dual protection in intellectual property rights for a single/common commodity, Indian laws are distinct. To briefly summarize, main branches of intellectual property rights are: –
a) Trademark rights which is available for name, shape, logo etc.;
b) Copyright which is available for artistic creative works in art, literary, music etc.;
c) Patent which grants monopoly to use and exploit a particular product / process for a certain period; and
d) Designs rights which gives protection for the 3D objects like cutlery, trade dress, motifs and patterns on fabric/ceramic etc.
The term of Copyright is one of the longest. Term of a trademark is perpetual subject to periodic renewal and no cancellation action. Patent lasts for 20 years–though in practice it only starts to make money after few years of grant. Designs have the shortest term of 15 years–10 years further extendable to another 5.
In the present post, I am focusing only on copyright and design.
Protection in copyright is granted from the moment it is created. However, Designs Act, 2000–as also in 1911 Act–protection is available to a person once he applies and thereafter granted a registration for his design. The Act bars displaying the article in question to general public before the application.
An artwork is protected under the Copyright Act 1957. But, the moment the artwork is applied to any article to give the article an aesthetic appeal, and once the article is sold in more than 50 number of units, under Section 15(2) of the Act, the artwork loses its copyright and comes under the realms of the design law.
Here is where the problem comes. Many designers, inadvertently, display their creations in fashion weeks, in their boutiques, showrooms etc. This constitutes displaying to general public and their creations are not eligible for design protections. When some other persons copies the design, the designer, based on wrong legal advice or her own understanding, files an action for copyright infringement against the person.
Delhi High Court in the ruling of Samsonite Corp vs Vijay Sales clarified the situation that once an object has been sold in over 50 units, the only protection is under the Designs Act. The link to the ruling is http://indiankanoon.org/doc/279539/ and the citation is 73 (1998) DLT 732.
Thereafter, in 2006, Justice Sanjay Kishan Kaul in Microfibres Inc vs Girdhar in an excellent judgement clarified the position even further and dealt with the situation where the patterns on the fabric were identically copied. The judgement is reported at 128 (2006) DLT 238, 2006 (32) PTC 157 Del and can be read at http://indiankanoon.org/doc/1210059/
There had been, post His Honour Justice Kaul’s judgement, two similar rulings by Delhi High Court on this point. One by His Honour Justice Sikri while dealing with copying of Tupperware utensils in Dart Industries reported at 2007 (35) PTC 285 Del http://indiankanoon.org/doc/1138401/ and another by His Honour Justice Bhat in the Mattel Inc while dealing with copying of the Scrabble board http://indiankanoon.org/doc/1138401/
All three rulings reached the Appellate Bench which decided the case against the Plaintiffs in each. The Appellate Bench’s ruling can be accessed at http://indiankanoon.org/doc/1082937/
The Courts, time and again, have held that once the creation is in public domain, the creator loses protection in design and post sake of 50 units, cannot claim any copyright as well.
Word of caution to my designer friends is: Please apply for design protection–which does not cost much–rather than taking an action for copyright infringement later which will be costly and futile.