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Requirements For Protection

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Chapter Summary

In accordance with Art. 25, Members shall provide legal protection for "independently created industrial designs." The broad language of Art. 25 leaves the Members considerable discretion for implementation. It addresses the Members and is not sufficiently precise as to confer direct rights to individuals. Art. 25.1, sentence 3 mirrors that approach because it permits Members to deny protection to technical and functional designs. Art. 25.1, sentence 1 contains two basic requirements for design protection. First, the industrial design must be "independently created", and secondly, it needs to be "new or original". The language of the Art. 25.1 suggests an alternative application of either the patent approach (novelty) or the copyright approach (originality), while cumulative application seems to impede the minimum standard of protection provided by Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Keywords: copyright approach; design protection; patent approach; requirements; TRIPS



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