Patents and Designs

• Pages: 759-763

Industrial design Paras. 1801-1803

PATENTS AND DESIGNS

(1) INDUSTRIAL DESIGN

1801. Criteria for determining the newness of an industrial design for pur-

poses of registration of the design.

“It is apt, at this stage, to recite the provisions of the remaining subsections of Section

13 of Act, particularly, subsections 2, 3 and 5. “13(2) where application is made for

the registration of an industrial design, the design shall be presumed to be new at the

time of the application except in so far as the following provisions of the Section

provide otherwise. (3) An industrial design is not new if, before the date of applica-

tion for registration, it has been made available to the public anywhere and at any

time by means of description, use or in any other way, unless it is shown to the

satisfaction of the Registrar that the creator of the design could not have known that

it had been made so available. (5) An industrial design is not new merely because it

differs in minor or inessential ways from an earlier decision or concerns a type of

product other than the type with which an earlier design is concerned.”- Per Salami,

J.C.A. in Densy Ind. Ltd. v. Uzokwe Suit No. CA/E/9/96; (1998) 9 N.W.L.R. (Pt.

567) 569 at 582.

1802. Criteria for determining the newness or prior publication for pur-

poses of protection.

“After a careful review of the authorities, it seems that in determining the question of

newness or prior publication or use of a design and whether a right in a design had

been plagiarized, both the terms of the claim and the external appearances of the

designs are to be examined. The description, including the plans and drawings, if any,

shall be used to interpret the claims.” - Per Salami, J.C.A. in Densy Ind. Ltd. v.

Uzokwe Suit No. CA/E/9/96; (1998) 9 N.W.L.R. (Pt. 567) 569 at 584.

1803. What constitute a registrable industrial design?

(1) “It is any combination of lines or colours or both, and any three dimensional form,

whether or not associated with colours that is in an industrial design. What actually

constitutes the design is that particular combination and arrangement of lines which

give such features.” - Per Ogwuegbu, J.S.C. in Uzokwe v. Dansy Ind. (Nig.) Ltd.

Suit No. S.C. 134/1999; (2002) 2 N.W.L.R. (Pt. 752) 528 at 542.

(2) “In the case of Ajibowo & Co. Ltd. v. Western Textiles Mills Ltd. (supra) where

Fatayi-Williams, J.S.C. (as he then was) held as follows: - “…. What actually consti-

tutes the design is that particular combination of and arrangement of lines which give

such features. Thus, like the disputed design in the case in hand, a design for a

pattern may consist of a mere arrangement of straight lines or stripes.” - Per

Ogwuegbu, J.S.C. in Uzokwe v. Dansy Ind. (Nig.) Ltd. Suit No. S.C. 134/1999;

(2002) 2 N.W.L.R. (Pt. 752) 528 at 545.

759