Jewellery is one of the most sought-after fashion accessories of all time, coming in different shapes, sizes, and forms. In recent years, the call for fashion and convention jewellery has increased rapidly, owing to the capability to sell jewellery on the internet, heightened jewellery design understanding, such as CAD and 3D printing, social media, and also consumer trends. Growing demands and an increased need to cater the products to various sections of the consumer have always stimulated ‘Copycat Designs’ or ‘Knock offs’ as the same eventually serves all the sections of consumers. The escalating demand for ‘fast fashion’ and bargain hunting alike have made knock-offs predominantly attractive to consumers. This trend has also gained popularity in the jewellery industry, where copying of popular designs is an all-too-familiar issue, which the jewellery designers face. This is where the role of Intellectual Property (IP) comes in, helping protect the unique designs of jewellery.
Copyright can be a useful instrument in protecting jewellery designs. Copyright protects artistic expressions that are original to the creator and that are fixed in a tangible form (i.e., more than just an idea in your mind). A limitation on the copyrightable subject matter is functionality. Functional articles cannot be protected; however, conceptually separable portions of such functional articles can be copyrightable. In other words, if an object has a practical or useful function, Copyright Protection applies only to the original, creative elements that can be identified separately from the utilitarian aspects of an object; however, it does not extend to the underlying design of the functional object. Thus, unlike their clothing design counterparts, the structure of which is generally considered functional and not copyright protectable, jewellery designs can be protected under copyright. One important benefit of copyright is that a copyrightable work is granted copyright protection upon creation, i.e., it does not necessarily have to be registered. Copyright ownership allows the owner to stop others from copying their jewellery designs. Thus, where a defendant can show that he did not copy the design (for instance, where the defendant independently created the same or a similar design without the knowledge of the copyrighted design), there would be no infringement.
In the case of Todd vs. Montana Silversmiths, Inc., the jewellery designer’s Copyright Registrations in barbed wire jewellery did not pass muster under court scrutiny. The court held that barbed wire jewellery was not copyrightable because there was not enough creativity or originality apart from traditional barbed wire to warrant copyright protection. In other words, the designer did not add anything protectable to the traditional barbed wire to warrant copyright protection.
Designs protect new, original, and non-functional (i.e., ornamental) designs, including jewellery designs. Despite the commonality of subject matter between copyright and design, there are some differences between these two types of IP Protection. As opposed to copyright, designs do not automatically subsist upon the creation of the design. Designs take longer to register and go through a stricter review process. Design Protection usually lasts for 15 years. It implies that jewellery designers should decide to apply for design protection if they anticipate that their design will have commercial success in the market. Jewellery designs that do not meet the ‘originality criteria’ under copyright can still qualify for design protection.
Here are some examples of jewellery designs that have been granted design protection:
Trademarks and Trade Dress
Trademarks and trade dresses protect the brands or designs that act as source identifiers. Consumers can recognize products bearing those words, logos, or designs coming from a particular source (brand). When we talk of jewellery, several iconic names come to mind, such as Swarovski, Tiffany & Co., Omega, Cartier, etc., which are branded on or in connection with jewellery. Trade dress, on the other hand, denotes packaging design.
Trademark and trade dress rights are created through ‘use’ in the market. Registration is not mandatory, but there are several benefits to securing trademark and trade dress protection. One practical benefit of obtaining trademark and trade dress rights on your jewellery is that these rights remain in force for perpetuity in practice. They can be renewed at intervals of 10 years. The rights remain valid as long as the trademark/ trade dress is being used in the market.
Jewellery designs can be protected with the help of the most common types of IP, such as trademarks, designs, and copyright. Even then, we see that the fashion industry is filled with copycats and ‘fakes.’ The same is a result of not having an effective IP strategy in place to protect these unique jewellery designs. The first step towards a good strategy is the registration of your jewellery as per the relevant form of IP that fits the best. Secondly and possibly the most crucial step is to monitor the market for infringers. Prompt and timely action against infringers is the best way to the prevent misuse of your unique jewellery designs, which are created with a lot of hard work, time, resources, and expertise.