Overlapping of designs with copyright and trademark
In this article we will discuss about the Overlapping of designs with copyright and trademark. There has been a lot of times when the designs overlap with the copyright. As when you get design registered you get copyright in that design and hence this overlapping is natural.
Also, when the design is identified as the brand there has been a lot of confusion created between the consumers as well as the design and copyright holder. But section 15 of the copyright Act states that the copyright cannot subsist design. It means one cannot have both the protection.
The confusion arises when the copyright is not obtained but the work has been produced by an industrial process more than 50 times then what right does the artist have.
So, we can say one cannot think that if he has registered for design, he is automatically having copyright over that. Also, you cannot have both the protection simultaneously. If someone has made their design registered, he cannot have copyright over that design. He has to let go his right of copyright.
In the case of Microfibres Inc vs Girdhar & Co & Anr, it was laid down that if there is an artistic work and the design made from which is not registered and already it is being reproduced for 50 times then the design cannot be registered but the copyright will continue to exist. The legislature’s intent was to protect the original work more.
Overlapping of designs with trademark
Shapes can be used bs used as designs also and as trademarks also. And if the brand is getting limelight due to design the confusion between the trademark and the design is bound to happen.
In the case Whirlpool India vs Videocon Industries Pvt Ltd, the supreme court held that when there is a similarity in the design and trademark what must be seen is that between the design and trademark the similarity is visible through eyes or not. For design infringement the trademark that is being used must be exactly same and the difference could be seen very obvious.