INDUSTRIAL DESIGN

FOREWORD

The process of amendments and updating of the Spanish regulations on industrial property which took place in the 1980's, helped by the fact that Spain became a member of the European Community, gave rise to new laws on patents, trademarks and semiconductor topographies, but it did not affect industrial design.

Industrial design has been ruled by the Estatuto de la Propiedad Industrial approved through Royal Decree July 26, 1929 (rewritten text approved through Royal Order April 30, 1930 and confirmed as legal force by Royal Order September 16, 1931) concerning models, industrial drawings and models and artistic drawings with industrial applications.

Currently, industrial designs (former industrial model and industrial drawing) are regulated by Law 20/2003, July 7, on the juridical protection of Industrial Design.

In the new law, as well as in the Community directive, the distinction between industrial models and drawings, concerning 3- and 2-dimension designs, respectively, is not actually translated in a separate legal treatment, and besides, the term model is applied to a different item: utility models.

Therefore, the expression industrial design has been preferred, as it is the one used in common language in order to designate the shape projected for using objects which will be manufactured. The maintenance of the traditional term in the Spanish version of the current international agreements and the community laws should not imply any problem concerning interpretation, as in those text no different legal regime that justifies the name difference is present either.

DEFINITION

Both the Community regulations and this law are inspired on the idea that the legally protected goods is, basically, the added value by the design to the product from the commercial point of view, disregarding its aesthetic or artistic level and its originality. Industrial design is conceived as a type of formal innovation referred to the appearance features of the product itself or its ornamentation.

This does not prevent an original or a particularly creative design from taking advantage of the protection of copyright, as both forms of protection are independent, accumulative and compatible.

According to this law, definitions are as follows:

1. Design: the appearance of the whole or part of a product, deriving from its features, particularly lines, contours, colours, shape, texture or materials of the product itself or its ornamentation.
2. Product: any industrial or handcraft article, including, among others, parts to be assembled in a complex product, packaging, presentation, graphic symbols and typographic characters, excluding computing programs.
3. Complex product: a product consisting on multiple replaceable components, which permit to disassemble and assemble the product again.

An Industrial Design grants its holder an exclusive rights (to use it and to forbid its use by third parties without its permission), on the appearance of the whole or part of a product derived, particularly, from the lines, contours, colours, shape, texture or materials of the product itself or its ornaments. Designs can be 2- or 3-dimension.

Both ornament and functional designs are registered, excluding those whose features are derived exclusively from its technical purpose. The separability of the shape and the function is what permits the external shape of a product to be protected as a design, when appearance features imply novelty and singularity as well.

DURATION OF THE PROTECTION

The duration of the protection offered by Industrial Designs is five years from the date of the filing of the register application, and can be renewed for one or more successive periods of five years up to twenty-five years, counted from that date.