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An Explanation To How The Courts Have Applied The Registration Requirement Of New/Original As Captured Under The Industrial Design Right, Act 660 In Protecting Industrial Design Right

1179 words - 5 pages

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AN EXPLANATION TO HOW THE COURTS HAVE APPLIED THE REGISTRATION REQUIREMENT OF NEW/ORIGINAL AS CAPTURED UNDER THE INDUSTRIAL DESIGN RIGHT, ACT 660 IN PROTECTING INDUSTRIAL DESIGN RIGHT.
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Intellectual Property Law - 3

MIKE ANIN-YEBOAH
Year: L.L.B (III)
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KWAME NKRUMAH UNIVERSITY OF
SCIENCE AND TECHNOLOGY,
FACULTY OF LAW, KUMASI

METHOD OF PRESENTATION
* Brief ...view middle of the document...

(Emphases supplied)
Although Ghana has an Industrial Designs Act, it is worthy to note that the implementing regulations have not yet been passed. Currently, the Registry only accepts and processes applications relating to textile designs. All other designs are not “registrable” in Ghana by way of national filings pending the implementation of the regulations. Non-textile design applications filed with the Registrar’s office are only accepted for onward transmission to ARIPO for processing and registration by the ARIPO office. Since Ghana has acceded to the Harare Protocol of ARIPO, design protection can be obtained in Ghana via an ARIPO application designating Ghana. Ghana has also acceded to the Hague Agreement for the international registration of designs. The 2003 Act does not provide for the implementation of the Hague registration system, so that the position in regard to such registrations is not clear.
Definition of New/Original In Relation To Act 660
Though section 2(2) provides that;
“An industrial design is new or original if it significantly differs from known designs”
(Emphases supplied)
Upon a painstaking reading of Act 660 it can be observed that the drafters of the aforesaid Act left a lacuna or failed to provide a yardstick in determining what should “significantly” suffice to constitute new or original in the realm of Industrial Design Law in Ghana.
Taking authoritative inspiration from the decision of the England Court of Appeal in the oft-cited case of Farmers Build Ltd v Carrier Bulk Materials Handling Ltd, the Court of Appeal speaking with one voice through Lord Justice Mummery noted that, for “originality” to suffice in the field of industrial design, a Court of record must ensure that the three fundamental elements of originality must have availed itself namely;
1. That the design must not have been copied from an earlier article
2. The design must not be similar to the design of contemporaneous articles produced by other parties in the same field.
3. The comparison is one of fact and degree. The closer the similarity of the various designs the more likely it is that the design is of commonplace. However where only aspects of the claimants design are only to be found in the defendant’s the Court is entitled to conclude that the design in question is not commonplace.
(Emphases supplied)
It is therefore a settled authority that; the three elements stated supra are the yardstick in measuring “originality” in contemporary world of industrial design.
Application of New/Original by the Courts in Protecting Industrial Design Right
In application of the “originality “test to cases brought before the Courts, it can be observed from the case of Farmers Build Ltd v Carrier Bulk Materials Handling Ltdand Dyson Limited v Vax...

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