A creative idea, for example for a certain flowered cloth pattern, is intangible and can be reproduced without any asset erosion. Therefore, exclusive rights to specific physical things, like the flowered cloth pattern, would not suffice to grant the design IP protection. The intellectual idea itself must be protected. This can only be achieved by prohibiting the imitation of the physical things through which we perceive the intellectual good. The ban of imitation for a certain time period “enables people to reap where they have sown. Without that prospect the incentive to sow is diminished.”
On the other hand, since we can only perceive intellectual goods if they are incorporated in physical things, non-materialized ideas cannot be protected. As a consequence, fashion styles like mini-skirts or jeans in general as much as manufacturing processes, such as innovative techniques to cut, sew or print clothing, which allow the manufacturing of a wide range of different physical results, cannot be protected as such under design law. Protection can only be sought as far as the idea is materialized in a specific physical thing.
Design registration tends to be appropriate primarily for protecting exceptional designs or features, or those which might be expected to become long lasting icons. However, if a design is counterfeited, the endless numbers of designs on the market make it hard to detect violations. Instead of design protection, most fashion designers rely much more on their fashion labels, applied directly on their products and often protected under trademark law. Fashion labels make it easier for designers to detect imitations and help fashion users to identify preferred items. Fashion houses invest large amounts in advertisements to promote the attributes of their trademarks in order to attract fashion users. But it is no surprise that counterfeiters also try to free-ride on the sales-promotional effects of trademarks by copying both the designs and the corresponding labels. For this reason, major fashion designers incorporate special treated yarn or other security elements into their labels, so facilitating the distinction between originals and imitations.
The Registrar may, on the application of any person claiming to be the proprietor of any new or original design not previously published in Bangladesh, register the design under this Part. The application must be made in the prescribed form and must be left at the Department of Patents, Designs and Trade Marks in the prescribed manner and must be accompanied by the prescribed fee. The same design may be registered in more than one class, and, in case of doubt as to the class in which a design ought to be registered, the Registrar may decide the question. The Registrar may, if he thinks fit, refuse to register any design presented to him for registration; but any person aggrieved by any such refusal may appeal to the Government. An application which, owing to any default or neglect on the part of the applicant, has not been completed so as to enable registration to be effected within the prescribed time shall be deemed to be abandoned. A design when registered shall be registered as of the date of the application for registration.
When a design is registered, the registered proprietor of the design shall, subject to the provisions of this Act, have copyright in the design during five years from the date of registration. If before the expiration of the said five years application for the extension of the period of copyright is made to the Registrar in the prescribed manner, the Registrar shall, on payment of the prescribed fee, extend the period of copyright for a second period of five years from the expiration of the original period of five years. If before the expiration of such second period of five years application for the extension of the period of copyright is made to the Registrar in the prescribed manner, the Registrar may, subject to any rules under this Act, on payment of the prescribed fee, extend the period of copyright for a third period of five years from the expiration of the second period of five years.
The disclosure of a design by the proprietor to any other person, in such circumstances as would make it contrary to good faith for that other person to use or publish the design, and the disclosure of a design in breach of good faith by any person other than the proprietor of the design, and the acceptance of a first and confidential order for goods bearing a new or original textile design intended for registration, shall not be deemed to be a publication of the design sufficient to invalidate the copyright thereof if registration thereof is obtained subsequently to the disclosure or acceptance.
(1) During the existence of copyright in any design it shall not be lawful for any person-
(a) for the purpose of sale to apply or cause to be applied to any article in any class of goods in which the design in registered the design or any fraudulent or obvious imitation thereof, except with the license or written consent of the registered proprietor, or to do anything with a view to enable the design to be so applied; or,
(aa) to import for the purposes of sale, without the consent of the registered proprietor, any article belonging to the class in which the design has been registered, and having applied to it the design or any fraudulent or obvious imitation thereof; or
(b) knowing that the design or any fraudulent or obvious imitation thereof has been applied to any article in any class of goods in which the design is registered without the consent of the registered proprietor, to publish or expose or cause to be published or exposed for sale that article.
(2) If any person acts in contravention of this section, he shall be liable for every contravention-
(a) to pay to the registered proprietor of the design a sum not exceeding five hundred taka recoverable as a contract debt, or
(b) if the proprietor elects to bring suit for the recovery of damages for any such contravention, and for an injunction against the repetition thereof, to pay such damages as may be awarded and to be restrained by injunction accordingly: Provided that the total sum recoverable in respect of any one design under clause (a) shall not exceed one thousand taka.
(3) When the Court makes a decree in a suit under sub-section
(2) it shall send a copy of the decree to the Registrar, who shall cause an entry thereof to be made in the register of designs.
(This article is a segment of author’s research on “INTELLECTUAL PROPERTY LAWS IN BANGLADESH: CURRENT STATUS WITH PROBLEMS AND FUTURE DEVELOPMENT” for the degree of MASTER OF PHILOSOPHY, Under International Culture University. This article is published for educational purpose only, plagiarism is strictly prohibited)