The re-explore of the industrial design protection system- the rationality of protection of industrial design under patent law
Date Issued
2016
Date
2016
Author(s)
Chiang, Hsin-You
Abstract
The meaning of “industrial design” in the World Intellectual Property Organization refers to the creation of visual effects produced by the outward appearance of an article, which is protected in countries all over the world by intellectual property rights. In Taiwan, however, industrial designs are protected by “design patents.” A good design of an article’s appearance can help a product to quickly catch the eyes of the purchasing consumers in the market. As Taiwan has now entered the era of “cultural and creative industry,” where the market is filled with all sorts of products that have well-designed appearances, whether the protection system for industrial designs is appropriate has become a very important issue. This thesis begins with the history of industrial design and discusses how the method of production has transformed from traditional handicraft manufactures to mass machinery production due to the Industrial Revolution; what needs to be protected in industrial design is mainly its “visual” creation, which is obviously different from “technical creations” protected by the patent system. Thus, classifying industrial design as a type of patent is questionable. Having analyzed the norms of the laws now in force, this thesis finds that with respect to the protection of industrial design, the four main dimensions of object of protection, protection requirements, review procedures, and infringement assessment are all unrelated to the technical creation-oriented “patents”. Protecting industrial design with the Patent Act further enforces its “guest” or “foster” status. For historical reasons, Taiwanese laws, based on the “design patent” system, placed industrial design under the Patent Act. Over the years, this has not only resulted in mispositioning industrial design but has also contributed to the misunderstanding of industrial design, overlooking that protection lies in protecting the essence of “visual creation”. This also causes industrial design to lose its subjectivity. In terms of promoting industrial development, this renders industrial design to be categorized as a branch of the Patent Act, with no proper norms for the industry to rely on. This thesis holds that the authorities in charge should rethink the meaning of industrial design. Based on the needs of the industry, the criteria regarding the purpose of the protection, the element requirements, the apply procedures, and the infringement judgment should all be developed. A management system should be created to handle charges, fees, applications, and registrations. It is hoped that through the above recommendations, a proper intellectual property rights system can be established while supporting the goal of facilitating the country’s design development.
Subjects
industrial design
patent
patent right
works of applied arts
industrial product
Type
thesis
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