Have you ever noticed the shape or color of mobile phones from Apple, Samsung, Vivo, Oppo, or Xiaomi brands? If you notice, each brand of mobile phone usually has a different shape, thickness, and color. Did you know that the difference in design is part of intellectual property rights? For information, intellectual property rights themselves are divided into two categories, namely copyright and industrial property rights. Industrial property rights are then further divided into several types, including patents, brands, industrial design rights, trade secrets, and integrated circuit layout designs. Well, the design of the cell phone is included in the type of IPR, namely industrial design rights. Then, are all designs of industrial products/goods, such as the design of bags and wallets included as part of industrial design as well? And how is the legal protection of industrial design rights in Indonesia? To find out the answer, Kontrak Hukum will discuss it in the following article.
Definition of Industrial Design
According to Law No. 31 Year 2000, industrial design is a creation about the form of configuration, or composition of lines or colors, or lines and colors, or a combination thereof in the form of three dimensions or two dimensions that give an aesthetic impression and can be realized in three-dimensional or two-dimensional patterns and can be used to produce a product, industrial commodity goods, or handicrafts. Industrial design itself is actually found in everyday life because the embodiment of the design will usually be produced in large quantities using machines because it includes industrial commodity goods. In addition to mobile phones, examples of industrial designs that are often found are the design and shape of bags (backpacks, handbags, totebags), clothes with motifs or images (animation, batik), the shape of packaging bottles, to the design of vehicles used (motorbikes/cars).
Legal Protection
Just like trademarks, the legal protection of industrial designs is only obtained if the industrial design has been registered. An industrial design right is an exclusive right granted by the state to the designer of the result of his creation for a certain period of time to carry out himself, or give his consent to other parties to carry out industrial design rights. With this right, the holder of the industrial design right automatically also has the right to prohibit others who without his/her consent make, use, sell, import, export, and/or distribute the goods given the industrial design right. Then, how long does the legal protection of industrial design rights last? Protection of Industrial design rights is granted for a period of 10 years and cannot be extended. When the term expires, the industrial design will become public domain. After becoming public domain, other parties can also use the industrial design. This is done so that there is no party that controls, controls, and monopolizes a certain industry using the industrial design rights owned.
Protection Exceptions
Article 4 of the Industrial Design Law states that industrial design rights cannot be granted if the industrial design conflicts with :
- Applicable laws and regulations.
- Public order.
- Religion.
- Norms of decency.
Application for Registration
Application for industrial design registration can be made online to the Directorate General of Intellectual Property. The applicant/proxy can then fill out the available forms and attach the :
- Physical examples or drawings or photographs and description of the industrial design for which registration is sought.
- Special power of attorney in the event that the application is submitted through a power of attorney.
- A statement that the industrial design applied for registration belongs to the applicant or the designer.
- Sufficient evidence that the designer is indeed entitled to the relevant industrial design (if the application is filed by a non-designer).
If the application is filed jointly by more than one applicant (more than one designer), the application is sufficiently signed by one of the applicants by attaching the written consent of the other applicants. After the application is submitted, the DJKI will conduct an administrative examination with a period of 3 months. If the documents provided are complete, the DJKI will make an announcement. From the date of commencement of the announcement, any party may submit written objections covering substantive matters to the DJKI. The objection must be filed and received by DJKI within 3 months from the date of the announcement. If there is no objection, the submitted industrial design application will meet the next stage, which is substantive examination. The substantive examination will last for 6 months. If the industrial design passes the substantive examination and the DJKI approves the application, the industrial design will be registered. Once registered, the DJKI will then issue an Industrial Design Certificate.
Application for Use of Priority Right
Can applications for industrial designs be made with priority rights like other types of IPR? The answer is yes. However, applications using priority rights must fulfill 2 conditions, namely:
- shall be filed within 6 months from the date of receipt of the application first received in another country that is a member of the Paris Convention or a member of the Agreement Establishing the World Trade Organization.
- must attach priority documents authorized by the office that organizes industrial design registration along with their translation in Indonesian within a maximum period of 3 months after the expiration of the period for filing applications with priority rights.
If the above two conditions are not met, the application for industrial design registration shall be deemed to be filed without the use of priority rights. An application using priority rights must also be completed with:
- A complete copy of the industrial design right that has been granted in respect of a registration first filed in another country.
- Certified copies of other documents necessary to facilitate the assessment that the industrial design is new.
License
As mentioned earlier, the owner of the industrial design right can also give consent to other parties to exercise the industrial design right. The consent is in the form of a license. However, the granting of rights is not a transfer of rights to enjoy the economic benefits of an industrial design. The granting of rights is done by an agreement within a certain period of time and certain conditions. After being made and signed, the license agreement must then be recorded in the general register of industrial designs at the DGKI to be published in the official news of industrial designs. License agreements that are not recorded in the general register of designs will result in legal invalidity against third parties.
KH Contact
Well Friend KH, that’s the explanation of industrial design, how legal protection, and how to register industrial design. For KH Pals who still have questions about industrial design rights or need help registering KH Pals’ industrial designs, KH Pals can contact Kontrak Hukum at the following link Tanya KH. For more information, KH Pals can also directly visit the page https://kontrakhukum.com/kekayaan-intelektual.
