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COPYRIGHT PIRACY & INFRINGEMENTPrathiba M. Singh LL.M.(Cantab)

F-12, Jangpura ExtensionNew Delhi 110 014

Ph: 91-11-24314741/42Fax:91-11- 24312895e-mail: [email protected]
mailto:[email protected]:[email protected]

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Statutes Governing Various IPRs

Trade Marks Act, 1999

Copyright Act, 1957

Designs Act, 2000 The Patents Act, 1970

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Legislature Parliament Statutory Enactments

Administrative Machinery

involved in RegistrationProcedures

Departments in the Government

viz., Police, Customs, etc., Judiciary

Various Entities Involved

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COPYRIGHT - A GLOBAL RIGHT

Right exists on creation No registration isneeded

Protectable in all

Convention countries. Almost 150 countries arecovered

Reciprocal protection in

all countries

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COPYRIGHT

Categories ofcopyrighted works

literary

artistic musical Dramatic Cinematograph films Sound Recordings Broadcasters rights Performers Rights

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Copyright

Computer includes any electronic or similardevice having information processingcapabilities (added by amendment in 1995)

Duplicating equipment means any mechanicalcontrivance or device used or intended to beused for making copies of any work.

Reprographymeans the making of copies of a

work, by photocopying or similar means

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Copyright

Publication means making a work available tothe public by means of copies or bycommunicating the work to the public.

But by a review of cases one can see thatprotection against what is contemplated underthe new WIPO treaty has already been

granted by judge-made law.

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Examples of some works

Choreography: art of arranging designing of ballet orstage dance in symbolic language.

It is a form of dramatic work. In order to qualify for the copyrightprotection it must be reduced intowriting.

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Ballet: The elements of ballet are the music,the story, the choreography, thescenery, and the costumes.

A composite work.

Such work could be the subjectmatter of copyright.

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Painting : An artistic work whether or not it posses anyartistic quality .

To be entitled to copyright protection a paintingmust be original i.e. it should originate from the

painter and not a mere copy of another painting. A painting must be on a surface of some kind. Facial make-up as such, however idiosyncratic it

must be an idea, cannot possibly be a painting for the purpose of

copyright act.

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Sculpture: Included in the definition of artistic work the work of sculpture includes casts and models. means the art, act, process of carving cutting,

hewing, molding or constructing materials intostatutes , ornaments, figures

The act, art, process of producing figures orgroups in plastic or hard materials. The art of sculpture is the branch of the visual

arts that is especially concerned with thecreation of expressive form in three dimensions.

A sculpture should in some way express in threedimensional form an idea of the sculptor.


NEW ENCYCLOPEDIA QUOTED IN WHAM-O CASE. AFrisbee was a sculpture.

Copyright subsists original sculpture. The creation of a

sculpture no doubt involves good amount of skill and labor

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Creativity

All Industry be it fashion design,manufacturing of industrial goods,manufacturing of aesthetic items ofexport, production of jewellery etc. hasintellectual creativity in them

Creativity starts from the very momentthe creator draws his first sketch, makes

improvements on it and finally arrives atthe product.

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Creativity

Creation goes through various stepswhich can be broadly divided

Conception

Design & development Commercial manufacture.

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CreativityAt each of these stages, there are works which are

created that can be protected in lawExamples- A drawing or a sketch which can be created as

the first conception of a product is acopyrightable subject matter

- The shape and aesthetic look given to aproduct is protectable under the Designs Act- The final product and the brand which is given

to the product are protectable under theTrade Mark Act

- If the shape is unique and can be identifiedexclusively with a specific product then theshape is also protectable

At every stage there is creation of what is loosely

referred to as IntellectualProperty

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Safeguards

Organisations which are engaged in any ofthe above stages of creation of a productought to protect their creation.

Sufficient safeguards ought to be takento ensure that such works are not misusedor plagiarised

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Safeguards

Whenever designs or any other subjectmatter of Intellectual Property is createdwithin an organisation, the contract shouldclearly specify that anything created by

the employees during the course of theiremployment would automatically belong tothe organisation which will have the rightsto exploit the same

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Safeguards

Documents relating to the creation shouldbe preserved chronologically in original.The same should be maintained underspecific portfolio and should be kept under

the custody of any of the Top ManagementOfficials

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Safeguards Once the final product is created and before it is

sent for industrial manufacture or in the case ofa designer product before it is put in the marketfor sale, steps should be taken to protect it byfiling Copyright applications or Design applications

Care must be taken to ensure that no priorpublication is made before such applications arefiled. This would ensure that in the case of adesign, prior publication is not made and in case ofcopyright. , no one else claims prior rights

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Safeguards The applications which are filed should be

followed up diligently and registrationcertificates obtained should be maintained inthe records of the organisation.

The Copyright office is located in Delhi. The

Designs office comes under the ControllerGeneral of Patents and Designs & TradeMarks, which is situated at Kolkata. However,applications can be filed through posts

If any misuse of the drawing, design, mark or work isseen, immediate steps should be taken to protectthem

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Defences Available

That the design has been previously registered inIndia; or

That it has been published in India or in any othercountry prior to the date of registration; or

That the design is not a new or original design; or That the design is not registrable under this Act;or

It is not a design as defined under clause (d) of

section 2.

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TERM OF COPYRIGHT

The term of copyright

for literary, dramatic musical or artistic work islifetime of author + 60 years

for anonymous or pseudonymous work is 60years from the date of publishing

for a photograph, sound recording,

cinematographic film and government work is 60years from date of publishing of the work

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INFRINGEMENT OF COPYRIGHT

What constitutes infringement? Doing or authorizing to do any of the

following acts without the consent or licenseof owner of copyright:

Reproduce the work including its storage by anyelectronic means

Issue copies to the public Perform/Communicate the work to public Make translation of the work Make adaptation of the work To make any cinematograph film or sound recording

in respect of the work.

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INFRINGEMENT OF COPYRIGHT

Permit for profit any place to be used for

communication of the work when infringement To permit for profit any place to be used for thecommunication constitutes infringement of thecopyright in the work unless he is not aware orhas reasonable grounds for believing that such

communication to the public will be aninfringement of copyright make infringing copies of work for sale, hire or

display or offer for sale or hire import infringing copies in India

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Types of copyright in one work

BOOKS:1. Rights of the author

2. Rights of the publisher

in India and abroad

3. Rights of a personpublishing the book onCD Rom/multimediaformat

4. Rights on the Internet

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MUSIC:

1. Right of lyricist

2. Music director

3. Singer

4. Orchestra

5. Music company

6. Version recordings

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Machinery

This can be sub-matterof patent & copyright.

But drawings ofmachinery falls incopyright.

Escorts Constructioncase.

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PEPSI CAN1. Copyright in the

packaging, colours etc.

2. Trade mark in Pepsi3. Copyright in circular

device

4. Copyright in manner ofwriting Pepsi

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Adaptations of various works

MUSIC --SONGS

Original album

New albums Remixes

Version

Recordings Pop versions

DJ versions

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STORY

PUBLISHED IN ABOOK

STORY ENACTED

IN A DRAMA TRANSLATION

TELE-SERIAL

CINEMATOGRAPHFILM

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STORY

OPERA/BALLET

MUSICAL VERSION

COMPILATION

Each of the aboveworks, once createdhave a separate, new

copyright, protectableas original works.

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POEMS

SONGS

SOUNDRECORDINGS

PERFORMANCES POETRY BOOKS

COMPILATIONS

OF POETRY,including expertcomments

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PAINTINGS Licensing as covers forbooks

Licensing on stamps

Create new versions bychanging the sizes ofthe painting

Calendars

Diaries etc.,

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Exceptions-fair use

Section 52 of the Copyright Act enlistsacts which do not constitute infringement,viz. Fair dealing for the purpose of private use,

including research and criticism or review ofthe work.

Fair dealing for the purpose of reportingcurrent events in a newspaper, etc.

reproduction for the purpose of judicialproceeding or report of judicial proceeding.

E f

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Exceptions-fair use

Making of temporary or back-up copiesto provide against destruction ordamage

Observation, study or testing of

functioning of the computer programme making of copies of software from alegal copy for non-commercial personaluse

F l

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Fair Dealing

Fair dealing is permitted for the

purposes of private study or research ,

criticism or

review or the reporting of current events.

F D l

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Fair Dealing

Fair dealing with the literary, dramatic,

musical or artistic work does not infringeany copyright in the work if used

for the purposes of research or private

study, in the case of a published edition, in the

typographical arrangement.

The aim of this provision is to give students and researchersgreater access to copyright works.

F i D li P i d

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Fair Dealing or Permitted Acts SEC 52(1)(o) : Making a maximum of 3 copies for

the use of a public library.

Sec 52(1)(c): Reproduction for judicial proceedingsor for the purpose of a report of a judicialproceeding. Judicial proceedings are defined as

including proceedings before any court, tribunal, orperson having authority to decide any matteraffecting a personslegal rights or liabilities.

SEC 52 (1)(m) : Reproduction in newspaper and

magazine of the article of the current economic,political, social or religious topic in certainsituation.

F i D li P i d A

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Fair Dealing or Permitted Acts

SEC 52(1)(p): Reproduction of unpublished workkept in a museum or library for the purpose ofresearch or study.

Sec 52(1)(d) : Reproduction in any work preparedfor the exclusive use of members of anylegislature or publication of a translation of acts oflegislature or rules

F i D li P i d A

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Sec 52(1)(h) : Reproduction by a teacher or a

pupil in the course of instruction, or as part of aquestion paper or in answers to such questions.

e.g. It seems that the teacher may copy onto a

blackboard a substantial part of a literary work,and pupil may copy it down. The teacher mayhowever not photocopy the same material for theuse by students in absence of a licensingagreement.

F i D li P itt d A t

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SEC 52(1)(f): Reading and recitation in public of

extracts (literary or dramatic).

SEC 52 (1)(g): Publication in collection for the use ofeducational institution in certain circumstances.

Sec 52(1)(I) : Performance in course of activities ofeducational institutions in certain circumstances.

WORK OF ARCHITECTURE: SEC 52(1)(s) :The making or publishing of a painting

,drawing, engraving or photograph of a work ofarchitecture does not constitute infringement.


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WORK OF ARTISTIC CRAFTSMANSHIP:

SEC 52(1)(t): The making or publishing of apainting, drawing, engraving, or photograph of asculpture, or other artistic work falling under thecategory of a work of artistic craftsmanship if

the work is permanently situate in a public placeor any premises to which the public has access willnot constitute infringement.


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AUTHORSRIGHT TO USE MOULD, CAST etc.OF WORK:

SEC 52 (1)(v): The use by the author of anartistic work, where the author of such work is notthe owner of the copyright therein, of any mould,cast, sketch, plan, model or study made by him forthe purpose of the work

Provided that he does not thereby repeat or imitate themain design of the work


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SEC 52(2)The exceptions to infringement listedunder s. 52(1) in relation to literary, or dramatic,musical artistic work will apply also in relation to

any translation or adaptation of such work

Wh h i i i i l?

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Whether registration is essential?

Particulars needed for registration:1. Name of author

2. Date of publication

3. Whether assignments are obtained4. If it is an artistic work, then no-objection

from Trade Marks Registry

Wh h i i i i l?

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Advantages of registration:

1. Documentation comes in place in terms ofassignments/no-objections from authors

2. Evidence of date when the work was created

3. Prima facie evidence of particulars4. Easier to take action especially criminal actionwhere police are convinced with copyrightcertificate. (re:software, music)

Whether registration is essential?

R di

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Remedies

Civil remedy

A suit for infringement ofcopyright can lie in the

District Court or in a HighCourt of OriginalJurisdiction.

R di s td

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Remedies contd.,

Civil remedy

Reliefs to be claimed:

1. Injunction coupled withAnton Piller orders, John Doeorders & Mareva injunction

2. Rendition of accounts,damages

3. Delivery Up

R m di s td

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Remedies contd

Criminal:

Copyright infringement is acognisable offence. A criminal

complaint can be filed either beforethe police or a Magistrate andsearch & seizure orders can beobtained.

P s & C ns f Ci il m di s

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Pros & Cons of Civil remedies

PROS

Proper judicialdetermination of rights

Likelihood of earningdamages

Less subject tochallenge

Commissioners seizureorders are morerespected

CONS

Delays - Trial, Appeal,Supreme Court

Damages not usuallyawarded

No severe punishmentfor violation of rights

Pros & Cons Criminal remedies

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Pros & Cons-Criminal remedies

PROS

Quick remedy

Greater possibility ofcurbing violationquickly because of fearof being arrested in acriminal case

CONS

Chances of seizure ofgoods may be less asthere can be a leakage

Difficulty in

coordinating withpolice authorities

CRIMINAL REMEDIES

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CRIMINAL REMEDIES

Section 63 of the Copyright Act,1957 definesoffence of infringement of copyright.

Infringement of copyright is a cognizable offencepunishable with imprisonment upto 3 years andfine upto 2 lakh rupees

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OVERLAP OF DESIGN,COPYRIGHT &TRADE MARK

Copyright & Design

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Copyright & Design

Design is for aesthetic appearance. Anythingfunctional is not registrable as a design

Copyright in a design comes to an end if the

work has industrial application and isreproduced more than 50 times

Is there diff. between copyright in a design

and copyright in a drawing. Yes.

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Confusion is worse with Trade markdefinition being amended

Shape is also a trade mark But articleslike dresses, sculpture etc., cannot come intrade marks.

However commercial products have more

overlaps in protection.

Designs

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Designs

Design

As per Copinger and Skone James on Copyright, a designis, in broad terms, the plan or scheme for the appearanceof an article (or a part of an article).

It primarily concerns with what an article looks like or isintended to look like.

It is not concerned with how an article performs itsfunction. The design of an article may be recorded in anyform including the written description, sketch, drawing,photograph or it could actually be embodied in the articleitself. Designhas also been defined as the design of anyaspect of the shape or configuration (whether internalor external) of the whole or part of an article.

Copinger & Skone James on Copyright, 15th Edn., Vol.1, pg. 730

Infringement

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Infringement

Infringement in the context of Indian Textiles, Apparels and

Life Style Industry:

Indian Textiles:

If artistic patterns are drawn up on a piece of cloth to beused for any purpose, including but not limited to for instance,making of garments, bed sheets, sofa covers, table cloths,etc., then the artistic patterns printed on the piece of clothare protected as copyrights.

On the other hand, if a designer of clothes creates a newpattern of garment to be used as a fashionable attire, then

the sketch/ drawing that is drawn of the pattern of thegarment is protected as a copyright.

Infringement

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Infringement

However, once the idea of the creative pattern isimplemented on the piece of cloth, then the samemay be protected as a design right.

If, the intention of the designer is to ensure that

only one piece of the garment is manufactured,then the same could also be protected as theartistic work imprinted on the piece of clothhaving copyrights.

Infringement

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Infringement

Alternatively, if the designers intention is to

produce several thousands of garments indifferent scheme of colours, etc., then theintention of the designer is to use the said designin the industry. Accordingly, the latter form of useof the same material may be considered to be a

design.

There is an ongoing debate on the issue and a lotdepends on the manner, in which the author of thework intends to use the work.

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Indian Cases

Cases

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CasesTahiliani Design Private Ltd. vs. Renu Tandon & Anr.C.S. (OS) No. 2222 of 2008 Before Honble Delhi High Court

Cases

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Cases

Allegation that the Defendantsgarments were copiesof the garments designed and crafted by the Plaintiff

The said garments were supposed to be developed,designed and crafted by the plaintiff as a part oftheir collection for the year 2006

The Honble Delhi High Court vide order dated

21.10.2008 granted ex-parte ad-interim injunction

Tahiliani Design Private Ltd. vs. Renu Tandon & Anr.C.S. (OS) No. 2222 of 2008 Before Honble Delhi High Court

Cases

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Cases

Defendant served notice.

Application for vacation of stay moved claiming that

both designs are separate.

The impugned prints are generic Jamawar Prints

Matter is sub-judice Referred to Mediation

Tahiliani Design Private Ltd. vs. Renu Tandon & Anr.C.S. (OS) No. 2222 of 2008 Before Honble Delhi High Court

Cases

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Cases

Allegation of infringement ofcopyright as the defendant usedthe dress in a movie which wasworn by an actress

Importance of costumes worn byactors and actresses in a film playspecial role and serve purpose ofpromotion of the movie

Held that all kinds of clothes worn

by actors cannot be stated as FairUse permitted under sec 52 (1)(u).

Suneet Varma Design Pvt. Ltd. Vs Jas Kirat Singh Narula &Anr. [2007 (34) PTC 81 (Del)]

Cases

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Cases

Case relating to design of upholstery

Plaintiff claimed to have copyright in theartistic work applied to upholstery design

Did not have a registered design howeverthey claimed a copyright in the drawings

Microfibres Inc vs. Girdhar and Co. and Ors. : 2006(32)PTC 157 (Del)

Cases

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Cases

Question was whether without a registered design, theplaintiff could protect the same and whether thecopyright was lost because of more than 50reproduction of the said upholstery fabric design

The Court although upholding that the motives etc. ofthe plaintiff was artistic and also holding that thedefendants had copied it, on a legal and technicalargument that more than 50 reproduction had beenmade, refused to grant injunction

Microfibres Inc vs. Girdhar and Co. and Ors. : 2006(32)PTC 157 (Del)

Cases

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Cases

Plaintiff claimed an injunction on the ground thathis designs of shoe soles had distinctive shapeand configuration

During the course of argument, it was revealedthat the plaintiff himself had copied designsfrom Bata India Ltd.

Thus Court had held that the plaintiff himself

being a pirater, no injunction can be granted infavour of the plaintiff

1997(17) PTC 268: Baldev Singh vs. Shriram Footwear

Cases

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Cases

Case under the Designs Act, 2000 Plaintiff had claimed that defendants copied the

design Stylush, Corel and Ultra in respect ofbath tubs

Defendant had not established that he had beenselling bath tubs prior to the registration obtained byplaintiff in respect of similar designs

Plaintiff had a registered design Sufficient resemblance between the two designs and

the plaintiffsdesign was protected

Hindustan Sanitaryware & Industries Ltd. vs. Dip CraftsIndustries: 2003(26) PTC163 (Del)

Cases

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Cases

Judgment of full bench of Delhi High Court Holds primarily that in a case filed for infringement of a

design, the defendant would be entitled to take adefence that the registration of the design itself wasincorrect

Various grounds can be taken for claim that theregistration was granted wrongly, namely, that the designis not new or original or unique

If any of the grounds can be proved, then the fact thatthe design is registered by itself, does not come to theaid of the plaintiff

Registration can be a proof at the first stage but it hasto be established that this was not copied design andthat it is a new and original

Metro Plastic Industries (Regd.) vs. M/s. Galaxy FootwearNew Delhi: 2000(20) PTC 1

Cases

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Cases

Suit filed alleging infringement of design in respect of abottle which is being used by plaintiff for packing hair oil

Court found plaintiffsbottle to be common bottle usedby several other companies

Bottles were held to be in use much prior to theregistration of the design of the plaintiff

No peculiar feature of the bottle registered as a designand the plaintiff had not pin pointed any novelty in thedesign of the bottle

Held that for validly of the registered design there must

be some novelty and originality in the design sought to beprotected and it must have not been pre-published

Dabur India Ltd. Vs. Rajesh Kumar & Ors 2008 (37) PTC227

Cases

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Cases

Suit filed for the infringement as well as passing off ofdesign in Toy Scooter

The defendant pleaded the prior publication of thedesign

Another defense taken by the defendant was that thedefendant too was having the registration of the design

Court held that there were various dissimilarities in theprior published design

The design of the defendant was identical to the designof the plaintiff

Hence the defendant is not protected even on account ofthe registration having been obtained by it whichadmittedly is the subsequent registration

Vikas Jain Vs. Aftab Ahmad And Ors, 2008 (37) PTC 288(Del)

Cases

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Cases

Suit for infringement of a design, where the defendant hadfiled a cancellation petition with the Controller of Designs

Proceedings pending before the controller of Design whohad heard the arguments in the cancellation petition beforehim and the order had been reserved

Defendant had also sought the transfer of the cancellationproceedings from the Controller to the Honble Delhi HighCourt

HonbleHigh Court declined to stay the proceedings pendingbefore the Controller and to order for the transfer ofthose proceedings as there was no provision for the

transfer of the cancellation proceedings under the Act

Reckitt Benckiser Australia Pty Ltd. And Anr Vs. R. B.Impex And Ors 2008 (37) PTC 262 (Del)

Cases

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Cases

Single Judge of this Court held that once a design wasregistered, prima facie, it was only the registeredproprietor, who could take benefit of the registered design

The Court then negatived the contention that even if a falseplea about the validity of registration was taken up by aDefendant, no interim injunction should be granted.

The Court went on to hold that the contention that thedesign had no novelty was a valid defence to the Suit andcould be raised to challenge the validity of the registration.

It further held that this did not have any bearing at theinitial stage and that these were matters to be decided onevidence.

It must be mentioned that after so holding the Court, wentinto the merits and held that in that case it had not beenshown that the design was previously published

Sat Pal Singh Vs. S.P. Engineering Works - 1982(2) PTC 193

Cases

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Faber Castell Textliner. A dark green body Unique cap of same colour as

colour of ink Gold lettering on green bodyRegd design.Prior Publication could be

through prior documents orsome other prior user.

Injunction granted

CasesFaber Castell Vs. Pikpen - 2003 PTC 538

Cases
http://images.google.com/imgres?imgurl=http://www.bueromarkt-online.de/images/fcliner48.jpg&imgrefurl=http://www.bueromarkt-online.de/product_info.php/products_id/1854&h=150&w=150&sz=6&tbnid=6VS5GPszMVYJ:&tbnh=90&tbnw=90&hl=en&start=9&prev=/images%3Fq%3DFaber%2Bcastell%2Btextliner%26hl%3Den%26lr%3D%26sa%3DG

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Suitcases made by plaintiff

copied by defendant The entire range was

copied

Claim was based on

drawings & copyright No registered design

No protection granted as itis manufactured

industrially more than 50times.

CasesSamsonite Vs. Vijay Sales 1998 PTC 372

Cases
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Design of photo-frames

Registered design

Defendant no.2 was anemployee of plaintiff

Injunction grantedprotecting the copyright

in the design of photo-frames

CasesPreeti Gupta Vs. Rajendra Prahladkar 2002 PTC 64
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International Cases

RADELY GOWNS Ltd. v COSTAS SPYROU and BROKE v

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RADELY GOWNS Ltd. v COSTAS SPYROU and BROKE vSPINCERS DRESS DESIGN Ltd.(1975) FSR 455

Plaintiff & defendantmanufacture ladiesclothing.

Copyright claimed in 3stages of ManufacturingProcedure viz.,

- design sketches,

- cutting patterns- prototype garments

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Def argued Prototype is not work

of artis.crtms. No one author is

involved Cutting patterns are

functional One of the sketches

was copied from earlierdress

Dress could notreproduce a sketch

Stiffness was to begiven otherwise it is nota dress

Delay

RADELY GOWNS Ltd. v COSTAS SPYROU and BROKE vSPINCERS DRESS DESIGN Ltd.(1975) FSR 455


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Court Held: It is work of A.C

Need not unite with one

author Dress can be a 3dimensional reproductionof a sketch

Huge diff between the

earlier dress and newone, hence plaintiff workis original

RADELY GOWNS Ltd. v OS AS S YROU and BROKE vSPINCERS DRESS DESIGN Ltd.(1975) FSR 455

BRIGID FOLEY Ltd v ELLOT (1982) RPC 433

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BRIGID FOLEY Ltd. v ELLOT (1982) RPC 433

It has been observed that if there is adirect copying from a garment which one

person has designed and produced byhimself, doing all the cutting , stitching, andso on, there might be a case for saying thatthere would be a breach of doing that.

BERNSTEIN v SYDNEY MURRAY(1981) RPC 303

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( )

The plaintiffs were owners ofcopyright in certain sketchesfor ladies garments in whichthe garments were shown asworn by ladies. They had

displayed garments madefrom such sketches in fashionshows and shop windows.Defendants have copied thedresses produced fromplaintiffs sketches. It washeld that this constituted

infringement of copyright insketches.

BURKE and MARGOT BURKE Ltd. v SPINCERS
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DRESS DESIGNS(1936) CH D 400

The plaintiffs alleged thatdefendants had infringed thecopyright in the sketchdescribed as frock beingworn by a young lady It was

also alleged that there wasinfringement of artisticcopyrights in dresses made upby the plaintiffs inaccordance with thosesketches, which dressthemselves were said to be

works of artisticcraftsmanship It was heldthat thee was no infringementof a sketch by a frock.

In MERLET v MOTHERCARE Ltd
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(1986) RPC 115

The plaintiff made a prototypebaby cape for her child. The cape was subsequently

manufactured by the secondplaintiff.

The defendants copied the

plaintiffs garments and madebaby cape in accordance withthe copy.

The plaintiff claiming thehandmade prototype garmentas a work of craftsmanship itwas not a work of artisticcraftsmanship brought anaction for infringement ofcopyright.

In MERLET v MOTHERCARE Ltd
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It was held that though the

prototype was a work ofcraftsmanship it was not awork of artisticcraftsmanship.

It was held that inapproaching the question thegarment has to beconsidered by itself andneither as worn nor ascontaining a baby.

No aesthetic satisfactionunless worn on the baby

Action was dismissed. Anappeal against infringementof certain drawings wasdismissed.

(1986) RPC 115

KOMESAROFF v MICKLE(1988) RPC 204
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(1988) RPC 204

A product called (movingsand pictures)comprising a mixture ofliquid, colored sands,

and a layer of airbubbles encased withintwo glass panels washeld not a work ofartistic craftsmanship.

They are functional not regd design

Cases
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MERCANDISING CORPORATION vHARPBOND(1983) FSR 32 P, 32 (Facialmake-up was not held a painting within

the meaning of sec 3 of the U.K.copyright act.)

Ford Motor Co.1993 RPC 399

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Vehicle parts are not subject matter of design becausetheyhave no value in commerce except as part of a vehicle

Mirrors, seats, etc., were capable of registration assubstitution was possible without affecting shape of thevehicle.

The distinction that seems to have been drawn is that thereare several parts which are mostly hidden and never seen, suchparts cannot be registered as designs.

However, parts and their circuits if in drawing form areartistic works

George Hensher Ltd s. Restawile Upholstery1975 RPC 31

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1975 RPC 31

Upholstered chairs & settees. One prototype was evolved chairs were copied

from it and sold Def. copied the chairs and hence the prototype Trial Court granted injunction. Appeal court

dismissed the injunction. HL refused protection

George Hensher Ltd s. Restawile Upholstery1975 RPC 31
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1975 RPC 31

Artistic craftsmanship need not necessarily meanwork of art.

The product may be a commercial success butneed not be of Art craftsmanship

Merchandising Corpn Vs. Harpbond1983 FSR 32
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1983 FSR 32

Adam from the pop group Adam& Ants New look for himself with Red-

Indian face markings Two red lines in grease paint,

light blue line in between, heartover left eyebrow & a beautyspot

Def. made a poster of it & madea portrait & superimposed newlook over an old poster

In infringement action courtheld that this is not a paintingand hence not protectable.

Animal Fair Inc., Vs. Amfesco Inds227 USPQ 817 (1985)
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227 USPQ 817 (1985)

Novelty slippers

Resembles a bears foot orpaw

Slippers design featuresseparate from its

utilitarian features, incl.impractical width of sole,shape of sole, profile ofslipper, toes which are

unrelated to function andcopyrightable.

Injunction granted.

CONCLUSION
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Technological advancement made thejob of the creator easy

it also made the job of thecopier easy.

Consciousness in IPR is the only wayto prevent the latter.

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THANK YOU