- Elgar European Law series
Chapter 4: Designs
4.1 INTRODUCTION – THE CONCEPT OF DESIGN ‘Design’ is a term which refers to the appearance and composition of an article, and to any preliminary drawings or models used. It is a hugely important aspect of the way we choose to live our lives, though this can sometimes be unacknowledged and unappreciated. Design touches a vast range of fields, for example: product design, packaging design, web design, software design, graphic design, theatrical design, colour design, architectural design, automotive design, environmental design, fashion design, furniture design, garden design, industrial design, interior design, urban design. As a widely based concept, covering both playful and functional designs, it presents a challenge to intellectual property law. How should such things be protected, if at all? If a design can be thought of as a work of art, then copyright protection is perhaps appropriate. But design protection is also demanded for industrial products, especially the aspects of shape and pattern which make them distinctive. If an item is mass-produced, should the designer or manufacturer be able to prevent others from producing a similar design? Should it make a difference whether the design has been copied or arrived at independently? And what sort of protection is appropriate? One problem is that it may be difficult to separate the functional and the aesthetic aspects of a design. If something is entirely functional, like a petrol engine, but not sufficiently inventive to justify a patent, there is little reason for granting monopoly rights over it. But as soon as...
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