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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 introduction to Industrial Design Law in Ghana * Definition of new/original in relation to Industrial Design Law * Application of new/original by the Courts in protecting Industrial design right * Conclusion * References
CASES CITED
Farmers Build Ltd v Carrier Bulk Materials Handling Ltd [2000] ECDR42; [1999] ITCLR 297, CA
Fulton Co Ltd v Grant Barnett & Co (2000)
Ocular Sciences v Aspect vision care (No.2) [1997] R.P.C.289; I P D 20022, Ch. D Dyson Limited v VaxLimited [2011] EWCA Civ 1206

Brief Introduction to Industrial Design in Ghana
Per section 1 (a) and (b) of Industrial Design Act , industrial design is defined as A composition of lines or colours, a three-dimensional form or a material, whether or not associated with lines or colours, or a textile design, is an industrial design where the composition, form or material gives a special appearance to a product of industry or handicraft and can serve as a pattern for a product of industry or handicraft.
(Emphases supplied)
Nevertheless, the learned author in the person of De Noblet J in his book “Industrial design: reflection of a century” defined Industrial Design Law to mean; the branch of law that relates to the use of applied art and applied science to improve the aesthetics, ergonomics, functionality of a product.
(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 Limitedthat, the Courts focuses its attention mostly on the fact and degree of the similarities in the design in contention. This is in the sense that; the Court compares the degree of similarity between similarity of commonplace and the closer the similarity of the design in question, the Court are bound by law to rule in favour of the applicant .Nevertheless, where only aspects of the claimants design are only to be found in the defendant’s design, the Courts are bound by law to conclude that the design in question is original.
Conclusion
From the aforesaid authoritative analyses made supra, it can be said that; the Courts do not apply a strict approach in interpreting or measuring the degree of “originality” in cases brought before it for adjudication. Instead, the Courts examine every case based on its merit and make ruling based primarily on the degree of the similarity between the designs in contention. Conclusively, if in the wisdom of the Court at the end of adjudication the degree of similarity in the design in contention is only limited to aspects of the design complained of, then the Court is likely to rule that; the element of “originality” has lost its value in the design. Nevertheless, if the similarities among the designs are not significant, then the Court is bound by precedents to rule in favour of the defendant. Is it then right to say on authority that Industrial design law does not “strictly” frown on the tapping of inspiration from other designs? From the aforesaid analyses the answer is YES.

REFERENCES
Mark Van Hoorebeek, Nut shells on Intellectual Property Law,sweet& Maxwell,2009.
Jocelyn de Noblet, Industrial design: reflection of a century, Paris: Flammarion/APCI, 1993.
Newsletter on Developments in Ghana Intellectual Property Law, Susan-Barbara AdjorkorKumapleyof Bentsi-Enchill, Letsa&Ankomah 2011.
African Regional Intellectual Property Organization (ARIPO) Harare Protocol on Patents and Industrial Designs Amended By the Administrative Council of ARIPO November 24, 2006

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[ 1 ]. Act 660,2003
[ 2 ]. Paris: Flammarion/APCI, 1993.See also Ocular Sciences v Aspect vision care (No.2) [1997] R.P.C.289;IPD 20022,Ch D and Fulton Co Ltd v Grant Barnett & Co(2000)
[ 3 ]. Act 660,2003
[ 4 ]. Report from the Legal and Regulatory Enabling Framework Supporting Anti-Counterfeiting and Piracy June 2008. See also 2014 report of Adams & Adams on Ghana’s Law on intellectual property.
[ 5 ]. African Regional Intellectual Property Organization (ARIPO)
[ 6 ]. [2000] ECDR42; [1999]ITCLR 297, CA
[ 7 ]. This must be done objectively in the light of evidence from experts in the relevant field.
[ 8 ]. ibid
[ 9 ]. [2011] EWCA Civ 1206