Industrial Designs

1. What is an Industrial Design?

(b) Useful Articles and Utilitarian Designs

First of all, in order to be registrable, an industrial design must be a design which is applied to a useful article. That is, it is not possible to rely on an industrial design registration to protect any of the following: a method of construction, an idea, the useful function of an article, or the materials used in construction of an article. The article to which the design is applied must be a useful article, but the features of the design itself cannot be determined solely by functional considerations.

It is not acceptable for the article to be merely a substrate for carrying some artistic work. Thus, a sheet of paper which has a depiction of a bouquet of flowers on it, could not be the subject of an industrial design. The sheet of paper has no useful function except to have the bouquet of flowers printed on it. Accordingly, the picture of a bouquet of flowers is an artistic work which might be capable of copyright protection, but it is not an industrial design. By contrast, if the same representation of the bouquet of flowers were printed on a waste paper basket, it might be the proper subject matter for an industrial design, since the waste paper basket is a useful article.

The contrary situation will also pose a problem for obtaining a registration. If your design is purely functional or utilitarian, then it cannot be registered as an industrial design. For example, consider a design for the tread pattern on the sole of a child's snow boot. That tread pattern would likely be a series of projections and grooves, the shape and orientation of which are designed to grip snow and ice in the most effective manner to improve traction. If the visual appearance of the boot sole was determined solely by those utilitarian considerations, then the resulting tread pattern could not be protected as an industrial design. In such instance, if some functional features of the snow boot sole were novel and not obvious in view of anything that had been done before, they might be protectable by patenting. By contrast, if the tread pattern had an original ornamental aspect, such as fanciful footprints that look like animal tracks or snow flakes, then, even if the tread pattern was effective for gripping snow, it might be protectable as an industrial design because the pattern has a visual appeal to the eye which is not determined only by the utilitarian function of improved snow gripping ability. However, the distinction between functionality and visual appearance is not always clear cut, and professional advice is recommended, especially in close situations.