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Difference between Design and Trademark- A brief note
Lakshay Parmar 4 Aug 2020

Difference between Design and Trademark- A brief note

Intellectual Property in today’s day and age has undoubtedly acquired the status of a major area in law. Basically, this property means the creation or invention of a product/service through putting in mental labour and effort by an individual or a group of individuals. Through this area of law i.e. Intellectual Property Rights, one can enjoy the exclusive rights, subject to certain time period, to create, distribute or regulate the use of the said product/service. Though IP contains various branches such as Trademarks, Copyrights etc., we will talk exclusively about Trademarks and Designs.

 A Trademark, going by the name implies a mark which depicts or represents your trade. In a market, the purpose of a TM is to distinguish your product from others and it subsequently enables the consumers to identify your product or service. A Trademark can enable its owner to prevent other from the unauthorised usage and also disallow other participants in the market to use a similar mark which can create confusion in the minds of consumers. TM under the Indian law is described under the Trademark Act, 1999[1] as, “trade mark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours

 

A Design attributes to the appearance of a product; it enables the owner to protect the physical attributes of his product that is distinctive in nature. A design represents the imagination and intelligence of a person that turns his creativity into a product. The design of any product if it’s good has a lasting influence on consumers' minds. Further, it adds value to the market of the product when a concept is appealing. The Designs under Indian law are protected in the Designs Act, 2000[2] as, “Features of shape, any configuration, pattern, ornament or composition of lines or colours which is applied to Two dimensional or three dimensional or in both the forms using any process including manual, chemical or mechanical, separate or combined which in the finished article appeal to or judged solely by the eye”

However, there are certain conditions that are needed to be fulfilled while registering a design such as:

·         Novelty and Originality

·         Uniqueness of the Design must be there

·         New design must not be contrary to morality

In case of Hello Mineral Water PVT. LTD. v. Thermoking California Pure[3], a concept of a cylindrical-shaped water dispenser was not deemed unique on the grounds that mere shape and form was not sufficient to prove innovation.

The Intention behind Trademark and Design law: A design-specific law is intended to encourage creativity by granting licensed proprietors exclusive access and establishing a competitive advantage for a limited period of time. This also helps/motivates companies to produce new and original content that cater to their customers. At the other hand, the principle under the trademark laws is to remove the risk of customer misunderstanding with respect to the source of goods / services, and trademark rights that therefore be continuous or perpetual.

Furthermore, an essential question whether a suit that was composite which joins infringement of Designs and passing off of a trademark can be maintainable, was answered in the case of Carlsberg Breweries v. Som Distilleries and Breweries Limited[4] where the Delhi High Court has held that it is maintainable and thus it overruled the judgment in Mohan Lal v Sona Paint[5] wherein it was held that both issue cannot be combined into the same suit. The judgment in the present case was given with reasoning that to join both the issues in a suit, the cause of action must arise from the same transaction.

Trademark and Design though are a huge branch of the same tree i.e. Intellectual property but inherently are very different from each other. TM deals with the symbol, mark or logo that represents a business whereas a Design is a graphical representation of the product manufactured by a business.

 

 



[1] Section 2(zb)

[2] Section 2(d)

[3] 2000 (56) DRJ 700

[4] CS (Comm) No. 690 of 2018

[5] CS(OS) 384/2008
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