PROTECTION OF JEWELLARY: A COMBINATION OF TRADEMARK, DESIGN AND COPYRIGHT LAW.

INTRODUCTION 

For many years, we all have been looking at how “Jewellery” has become an essential part of one’s life, especially for females. These days if we look around one will notice that not only female’s but yes, male’s too are fond of jewellery.

We generally look around that there are different types of jewellery in different shapes, designs and sizes..

Protection Under Design Act

Before proceeding further, one should firstly know the importance of design. A “Design means simply the type of shape, configuration, pattern, ornament or composition of line or colors functional to any article whether in two dimensional or three dimensional or in both forms, by any industrial process , whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judging solely by the eye.”

From the meaning of design, one must be clear that design mean the factors of shape, configuration, pattern, ornament or composition of lines or color applied to an article and not the article itself.

There is a theory of proprietor. “Proprietor of a original or unique design”, —

(i) where the creator of the design, for good consideration, executes the work for some other people, mean the person for whom the design is so executed;

(ii) where any people obtain the design or the right to apply the design to any article, either completely of any other people or otherwise, indicate, in the respect and to the extent in and to which the design or right has been so acquired, the people by whom the design or right is so acquired; 

(iii) in any new case, means the author of the design; and where the property in or the right to relate, the design has devolve from the orginal  proprietor upon any other public, includes that other public.

Basics requrirement for protecting jewellery in India

Before claim protection under designs act, one must be clear with the basic requirements for protecting jewellery in India.

The basic requirements are as follows:

1. The design of Jewellers should be new or original.

2. The design of jewellers should not be disclosed to the person.

3. The design of jewelers must be significantly distinguishable from the known design or combination of known design.

4. The jewelers design should not comprise of any obscene matter.

5. The design of jewellers must be eye appealing.

Registration process of protection of jewellery

Registration method of protection of jewellery designs are as :

• An application for registration of Jewelers Design shall be made to the controller of designs.

• In application for registration, one has to attach the photograph of jewellers designs.

• The person registering for protection of jewelers has to mention the class of jewellers i.e., 11-20.

• Additionally, the controller of design may register a design of jewelers, on the application of its proprietor, provided it is new or original, has not been earlier published in any country and which is also not contrary to municipal order or morality.

• The controller shall before registration, refer the application to an examiner for examination as to whether the design of jewelers is capable of being registered and consider the report of examiner.

• The application for registration shall be prepared in the prescribed form and is to accompanied by the agreed fee.

• If the evaluator finds that there is 100% originality in the design of jewelers then his jewelers design will get enroll.

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Protection Of Jewellery Under Copyright Act, 1957

Initially, one must be thinking that how one can claim security for jewellery under copyright act. Firstly, I will be telling under this for what all things we can claim copyright.

Under Copyright act following things can be secured:

1. Literary or dramatic work;

2. A musical work;

3. An artistic work;

4. A cinematograph films;

5. A sound recording;

6. A photograph;

7. A computer-generated work.

As our subject is protection of jewellery, I would like to make it clear that jewellery can be secured under creative work. “creative work” means:

(i) a image, a sculpture, a drawing (include a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses creative quality;

(ii) a [occupation of architecture]; and [work of architecture]; and”

(iii) any other work of artistic craftsmanship.

Registration for jewellery under Copyright Act

The people who gets registration uses “©” symbol. Anyone who claim copyright can use this symbol. It is not compulsory to have registration for jewellery under copyright act. The registration for copyright is totally optional.

Copyright for jewellery will survive there and then only when the sketch is finished and given a material form. Copyright act simply raises a prima facie presumption in respect of the essentials related to jewellery entered in the register of copyright. 

There will be mostly certain steps for registering of jewellery under copyright act. Under copyright as we are claiming security for sketches of jewellery, steps for registration are as follows:

• The first and primary step for registration of jewellery is to file an application either physically or electronically in the copyright office.

• Secondly, the possessor of jewellery may apply for registration to registrar of copyrights in Form XIV accompanied by the prescribe fee.

• Thirdly, the submission of copyright will be examined.

• Fourthly, the individual applying for registration for jewellery is essential to give notice of his application to every individual who claims or has any interest in the subject matter of the copyright or dispute the rights of the applicant.

• Fifthly, if the registrar of copyrights does not obtain any objection to registration for sketch of jewellery within thirty days of the receipt of the application, he shall, if satisfy about the correctness of the specifics given in the application, enter them in the Register of copyrights. 

• Sixthly, If the registrar receives any doubt in the aforesaid time or if he is not satisfied about the correctness of the particulars given in the application then he may enter such particulars for jewellery in the register as he consider proper, after hold such investigation as he deems fit.

• The next step and last one i.e., Registration. The register method for jewellery complete when the candidate has been issue the extract of Register of Copyrights (ROC).

Why protection of jewellery is necessary under the Trademark Act?

Protection of jewellery is necessary under trademark act for following reasons:

1. The name and logo of jewellery will not be use by anyone else.

2. The trademark for jewellery will signifies that it has come from single source.

3. Trademark for jewellery will act as a prime tool for advertising and selling of jewellery.

4. Protection of jewellery is really necessary to be secured under trademark act as it prevents other persons to go for the reproduction of same jewellery in same style.

Registration of jewellery under the Trademark Act

There are certain steps for registration of jewellery below the Trademark Act:

• Firstly, one has to confirm the name and logo for jewellery. The name and logo for recognition of particular jewellery must be exclusive.

• Secondly, brand name and logo of jewellery should not be listed in Trademark Registry of India. Once, it is sure that brand name and logo for jewellery is orginal, one has to initially file an application for the similar in Trademark Registry if India.

• After trademark appliance for jewellery is filed, it is examined by the examiner.

• The examination for jewellery brand name and logo may take 12-18 months.

• After examination, if the examiner is satisfy then trademark for jewellery will be publice  in trademark paper.

• The next and primary step is journal. Under this, if anyone has any kind of doubt can instantly object for the same.

• Once the submission for jewellery protection proceed for trademark protection, following journal in trademark journal, a registration certificate under the seal of Trademark Office is issued.    

Conclusion

These days if we look around, each one is loving of jewellery. Our research article topic is Protection of Jewellery- A mixture of design, copyright and trademark law. Now, when we talk about security of jewellery, we can observe that under intellectual property rights there are different provision under which we can secured our jewellery.

After going through complete study of design act, copyright act and trademark law I have noticed that one cannot declare protection for jewellery under one particular act.

Under copyright law, we can declare copyright above sketches/drawings of jewellery. If we speak about design act, one can claim security over model, shape and colour of jewellery. Trademark act required protection over brand name and logo of jewellery.

There are special time period of protection and those time period can be changed as well. security of jewellery is a topic which is hardly discuss in our country. There are basic concerns for protecting the jewellery in India. The design of jewellery must be exclusive and it must not be disclosed earlier to the public. 

When I was writing this article, I have notice that how wonderfully the Acts under intellectual property are premeditated. One cannot claim security for whole jewellery under a particular act. The jewellery is put into different parts, from different parts I suggest that for logo and brand name one has to look under trademark act, for sample, shape, size, colour under designs act and for sketch above copyright act.  

Lastly, I would like to say that thought for making the jewellery can be same but the way of presenting that jewellery has to be different. If one will claim security over ideas then there will be monopoly and in market there will be huge mess. 

Written by:

Tanu Priya.