 Introduction | The definition of Industrial Designs must be understood in a broad sense. Everything which gives rise, in the appearance of a product, to an esthetic impression (i.e., an impression received by the sense of sight) can be an industrial design. This would also include so-called "textile designs". The definition also comprises external effects resulting from the use of certain processes such as oxidization, enameling, etc. A concrete aspect must always be involved; so that a manufacturing method is not protected as an industrial design.
The Patent, Industrial Designs and Trade Marks Act (The Act) excludes, from protection, elements in a design which are in the design only for the purpose of obtaining a technical result, and so that it would not be possible to claim that such elements are the result of personal creativity. Such elements are within the domain of patent law and are outside the protection conferred under industrial design law. An example of such an element, in the design of a new ballpoint pen, would be contracting tip of the pen. Here, the ballpoint pen as a whole would be protected as an industrial design, but the mechanism for exposing or retracting the writing tip would not be so protected; but it may be the subject of a patent.
|
|
Conditions for Registration of Industrial Designs | In order to be eligible for registration, an industrial design must be new. The Act requires universal novelty so far as publications in tangible form and so far as other forms of disclosure are concerned. It also allows, as in the case of patents, for a "grace period" of 12 months for filing an application after the public disclosure of an industrial design. Designs contrary to morality (e.g., obscene forms) or public order (e.g., the emblem of a public authority) are excluded from protection.
The right to the industrial design belongs to the creator, and provision is made for designs created jointly, or when made in execution of an employment contract.
|
Applications | The provisions of this Act which apply to patents are made applicable, with relevant alterations to industrial designs with regard to the following matters:
-
the right to registration of an industrial design;
-
industrial designs created jointly by two or more persons;
-
the right to assign a registered industrial design; and
-
the right of the creator of an industrial design to be named in the registration.
The application may contain a declaration claiming priority as provided for in the Paris Convention of one or more earlier national or regional applications.
Deferment of publication for a limited period attempts to strike a balance between the need for secrecy and the need for legal certainty and transparency.
Deferment of publication must be requested at the moment of filing the application, since the registration procedure is too short to allow for the request to be filed at a later date.
The Act does not impose a limit on the maximum number of industrial designs that may be the subject of an application. However, the industrial designs that may be included in the same application are restricted to those designs which belong to the same class of the International Classification or to the same set or composition of articles.
The Act introduces the possibly of keeping a registered design secret for a period not exceeding 12 months. This responds to the need of some sectors of industry to defer the publication of their designs before the corresponding products reach the market. Particularly in the field of fashion, but also in other sectors, letting competitors know in advance the general line of a design or designs could jeopardize the success of a commercial operation.
|
Registration | The Act provides only for a formal, but not a substantive (in particular as regards novelty), examination of industrial design applications. The procedure is that industrial designs are registered after the positive result of a formal examination, an examination as regards the right of the applicant, where he is not the creator, to the registration of the industrial design and an examination for compliance with the definition of "industrial design" and with the requirements of public order and morality, without any opposition proceedings being entertained.
The registered owner, in case of deferment of publication, enjoys a right which can be enforced against infringers. However, since infringers cannot be considered to be aware of the design, in view of its secret nature, the action for enforcement of the rights is, as long as no publication has taken place, subject to a prior communication to the alleged infringer of the whole file, including the representation of the design. This does not imply that the information should also be brought to the knowledge of the public at large.
|
Rights Conferred by Registration | Protection commences from the filing date. It only means that the starting point for calculating the duration is the filing date. The protection commences from the date of registration.
The exploitation i.e. the selling, making or importation of articles bearing or embodying a design which is a registered design in Mauritius by other than the registered owner requires the agreement of the latter. The registered owner has, in addition to remedial actions, the right to take court actions against any infringement (to enter court actions as regards any infringement.).
|
Duration | Once registered, an industrial design is protected for a period of five years. The duration is computed as from the filing date of the application. This does not mean that owner of the registered industrial design, by merely paying the fee prescribed, can renew the registration for two further consecutive periods of five years each. As in the case of patents, and for the same reasons, the fees for the first and second renewals would increase progressively and days of grace are allowed for the late payment of the renewal fee. |
Invalidation | The Act makes similar provisions, in all material respects, to those relating to patents, and establishes the possibility of invalidating registered industrial designs which do not satisfy the specific fundamental requirements of the law.
|
Agent | The Act ensures that applicants residenty outside the territory of Mauritius are represented by a local attorney or registered agent to represent clients before the Industrial Property Office.
|
|
|
|
|
|
|
