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Book Reviews

Book Announcement : "The Finished Article: Essays on Indian Designs Law"

LIVELAW NEWS NETWORK
23 Jun 2022 1:57 PM GMT
Book Announcement : The Finished Article: Essays on Indian Designs Law
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The Finished Article: Essays on Indian Designs Law (Thomson Reuters, 2022, ISBN-13: 978-9393702173) is a recent book published by Eashan Ghosh, intellectual property lawyer. The book is available for purchase online at this link.

This is his second book on Indian intellectual property law, following Imperfect Recollections: The Indian Supreme Court on Trade Mark Law (2020).

The Finished Article intends to offer readers a guided tour through the 100+ year modern history of designs case law in India. The four core chapters detail key practice areas in Indian designs law. They cover prior publication, novelty and originality, design cancellation actions and design infringement actions. These four chapters are bookended by one chapter each on the overlap of designs law in India with other disciplines in wider intellectual property.

Here is a short extract from the Preface of The Finished Article below.

***

We tend, in India, to view intellectual property law as the sum of its parts.

A typical understanding of the subject might recognise, for instance, that there is trade mark law and patent law and copyright law. Add them all up, and you get intellectual property law. In this rendition, intellectual property law is an eclectic subject.

One branch of intellectual property, however, calls the lie on this eclecticism.

Indian designs law does not and cannot function as a separate discipline of intellectual property law in any meaningful sense. In fact, each major discipline within intellectual property that is not designs law casts a long shadow over it.

The commercial right that lies at the core of a registered design is, quite literally, called a copyright in the design. The most elaborately judicially discussed questions in India in the last decade have involved the combination of design infringement causes with passing off. Much of the substantive law under the incumbent Designs Act operates under the agreement that it shall apply to registered designs as it does to patents.

The encroachments run yet deeper. To understand them fully, we must ask what happens when these disciplines converge.

How, for instance, does a work capable of being protected under copyright and designs realise its full legal potential? What happens if an infringement claim is founded on facts that assert elements of designs as well as passing off? If a registered design is under challenge and its validity is asserted as if it were a patent, what would be the result?

The answers are fascinating.

We find that the copyright/design overlap cannot be resolved by applying law known to both. The answer lies in applying law that does not respond to the traditional definition of either. Claims for design infringement with passing off cannot be integrated by simple combination. This integration has been achieved by developing a method that is exclusive to such claims. Validity questions raised of designs registrations cannot be understood in an identical manner to such questions in patent law. The way they are enforced is entirely different.

We find, therefore, that complete answers cannot be arrived at merely by considering the additive effect of the constituent disciplines. To find these answers, we must, instead, apply law that is different in character from the law that governs its constituent disciplines.

If we pause to consider the implications of this, we realise something critical. This may still be intellectual property law but it is no longer merely the sum of its parts.

Designs law is not an eclectic discipline, but a transcendent one.

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The author can be reached here or here.


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