The overlap between copyright, design and trademark


 An imbrication issue is one where the holder of the Intellectual Property Right tries to assert his right under further than one conception. Software is defended under both brand laws and patent laws. also, artificial design patents that could be defended under the Designs Act, in specific cases, garner protection under brand and trademark as well. When issues arise due to the lapping of colorful types of Intellectual Property Rights the courts have majorly followed two approaches. Either the courts should let the parties apply similar rights and benefit from similar imbrication or it should limit the compass by forcing them to demand protection under just one of the doctrines. The benefit of the ultimate option results in clear discrimination and better perpetration of the rights as the compass and limitation of every right is different.  Imbrication in numerous cases is necessary thus a need arises to maintain a harmonious concurrence between these rights.

The imbrication between Designs and Copyright:

 The binary protection or the issue of imbrication between the design and brand has been addressed in Section 15 of the Copyright Act. The section lays down that brand isn't going to live in a design that has been registered under the Designs Act, of 2000. thus when a design is registered under the Designs Act, the person has to antedate his rights under the Copyright Act.

 The contention arises where if the design isn't registered under the Designs Act, and the composition is reproduced further than 50 times by any artificial process, also the brand of the proprietor in the composition’s design ceases.

 Let us bandy the riddle this provision poses with the help of analyzing a veritably notorious ruling by the Delhi High Court. In Microfibers Inc vs Girdhar & Co & Anr, it was held that if there's a cultural oil and the design created out of it isn't registered and reproduced 50 times, only the brand of the design will be waived and the brand in the original work i.e., the oil would continue to live. The intention of the council was inferred as giving further significance to the original work of the author and smaller graces to an industrially produced design. The fact that the Copyright Act doesn’t simply honor any brand that's applied to a composition’s design gives birth to an issue i.e. defective application. This interpretation has also been espoused because any other interpretation would only render the meaning of the subject matter under the Design Act as fully ineffective and useless. still, this doesn’t set a good precedent as this interpretation is leading to the corrosion of rights.

 It's the work of the council to come up with clearer laws and not that of the bar to navigate its way through vague and disagreeing vittles, thus these issues should be addressed and the imbrication should be resolved in an important effect, and just manner.

The imbrication between Design and Trademark:

 Shapes can be used both as a trademark (if used for trade) and as a design (if it fulfils the criteria). thus, an imbrication between design and trademark does live. The question or the riddle always appears when it comes to claiming protection from violation.

  In Whirlpool India vs Videocon Diligence Pvt Ltd, the ‘test for design violation’ was established. It was held that for a suit to be successfully decided in favor of the complainant in case of design violation it needs to be decided by the eye alone. It means that the distinctive or the essential point of the design should have been infringed or copied and this similarity has to be judged by the eye alone.

 Question Whether a shape that has been registered as a design under the Designs Act, 2000 gets started being used for trade as a trademark would lose its protection under the Designs Act, 2000. This has been answered both in affirmative and negative terms in the precedents set by the Indian bar. In protestation In Dart diligence Inc and Ors vs Techno Plats & Ors, amongst other effects, it was held that the action of passing off is a common law right, independent of the Designs Act, but it was not contended in this case that the public associated the design with the company. The same was held in Smith Kline vs Hindustan Lever that passing off is a right grounded on the common law structure and despite the remedies for the violation being handed in Section 22 of the Design Act, 2000, it'll be available to a person. In Micolube IndiaLtd.v. Rakesh Kumar trading as Saurabh diligence & Ors. a suit for passing off was allowed to be introduced by applying the same logic as that of common law origin. further explanation was handed by stating that it isn't necessary to find a provision specified in an enactment for an institution of a suit unless it has been specifically banned or barred from the governance of the civil court in clear language. still, it was held that a compound suit for passing off and violation cannot lie as the cause of action behind the violation and passing off be different.

 A suit against violation of design is brought when the oneness or originality of the design is violated by an act of the infringer whereas a trademark violation occurs when the infringer tries to profit or make a profit from the goodwill and an established presence of the business.

The imbrication between Trademark and Copyright:

 Trademark and Brand laws serve two different purposes in India. A brand is for guarding the rights of authorship whereas a trademark is to cover distinctive signs related to trade. Still, an imbrication occurs between the brand and the trademark.  In general, the conflict arises in the areas of ensigns, cultural signs, totems, short rulings, use of fictional characters as marketable signs, etc. Wherever similar imbrication occurs the people try to get an accretive benefit under both the Brand and the Trademark Act. They treat both these laws as reciprocal and thus try to gain benefit by exploiting both or by applying them to particulars of a composition. For illustration, a painter would enjoy brand protection over his oil but if the same oil is used as a totem for trade, also it would also garner the benefit of the trademark. The picture’s trademark won’t affect the brand status.  In India, ensigns qualify as cultural workshops for brand protection.


 With the invention, each day, the overlaps and thus mystifications increase when it comes to deciding the cases related to Intellectual Property Rights. It's the need of the hour that the council comes up with better laws that govern the issues related to lapping rigorously and unambiguously.  What exists right now are just approaches and views espoused by the courts of the country to deal with the lapping. It isn't the job of the bar to navigate their way through nebulous laws. It's imperative that the council takes cognizance of the issues and fix them.