Does jewellery design have a place in intellectual property rights?
Written by Olivia Nabila | Read in Indonesian
The culture of imitation does not only encompass clothes, bags, or shoes. Many jewellery products are imitated and the designers tried to take the case to court. Loree Rodkin, for example, an independent American designer best known for the design of the “Inaugural Ball” ring worn by Michelle Obama - sued Tres Glam for imitating her "Spider Web Bondage Ring" design.
This is not the only case. We can see a lot of similar designs of Pandora's “Sparkling Tennis Bracelet” on Instagram. It's just that many of such cases do not make it to court.
This then raises the question of how exactly is the protection of jewellery designs? Can it be protected by copyright?
Protection of jewellery designs in Intellectual Property Rights (IPR)
Protection of jewellery actually has many places in IPR, ranging from patents, copyrights and industrial designs to trademarks. However, the main key to the protection of jewellery design is industrial design.
What is Industrial Design?
Citing a previous TFR article, industrial design protects the shape, configuration, or pattern of a product. In essence, industrial design seeks to protect the aesthetic elements of a product. This may sound similar to the kind of protection that copyright provides, because copyright also protects works of art. What makes them different is that copyright protection is not intended for a product that will be mass-produced. As for industrial designs, the basic requirement for protection is if the product can be used and mass-produced.
In addition, protection for industrial designs must be applied for, while copyright protection is in place as soon as a product is finished.
Industrial design protection can also be applied to a small part of a product. For example, protection for the pendant of a jewellery only, because industrial designs cannot protect designs that are common (the shape of jewellery straps is generally circular). On the contrary, copyright protection applies to the jewellery in its entirety.
Therefore, industrial design protection is a form of enhancement of existing protection by combining the aesthetic and functional aspects of a product.
What are the requirements for a jewellery design to be registered?
There are two requirements to obtain industrial design protection, namely the design must be new and registered. Just like trademarks, industrial design also adopts the principle of first-to-file.
The requirements for novelty in industrial design according to the law are slightly different. Novelty is defined as a condition where the design has never been shown to the public before. Accordingly, the design must be registered first before being marketed.
There are also factors that can make a protection application for a design rejected, such as a design that depicts a naked human body because it is deemed violating decency.
The protection will give the designer exclusive rights for 10 years and cannot be extended. This sometimes makes designers reluctant to register their designs–because of the short protection period and the registration process may take a long time.
What are the weaknesses of industrial design protection in Indonesia?
In the process of registering a design, the new Industrial Design Law examines the similarity of a design when there is an objection from a third party. It means that if there are no objections, a design can be accepted only based on administrative examination. As a result, there is a possibility that a design has similarities with others and the application is granted.
What about other IPR groups?
Patent
It is possible that a jewellery design can be protected under a patent group, although patent protection generally applies in the field of technology. A design can be protected if it presents a new invention or solves a problem that exists in the field.
For example, high-end jewellery brand Pandora holds a patent for clips used in its necklaces and bracelets.
Copyright
Copyright protection for jewellery designs is stipulated in the category of works of art, especially sculpture–depending on the method of manufacture. The advantage of copyright protection for works of art is that it will last for the creator’s life plus an additional 70 years.
Trademark
Actually, the subject of protection in trademark is not the design, but the name of the jewellery. For example, Tiffany and Co. has protected many of its product names, such as TIFFANY HEARTS, TIFFANY SIGNATURE and TIFFANY FOR MEN. In fact, its blue box design, “The Blue Box”, and its signature blue colour have obtained trademark protection.
