The Protection of Architectural Designs As Industrial Property
Architectural ideas and designs are intellectual property, just as other creations such as paintings, songs, and pictures are. Creating architectural designs involves transferring a mental picture of a building or structure into a physical one on paper and finally on the target project.
As a result, architectural designs fall under the class of artistic works and thus enjoy copyright protections under intellectual property law. However, you can also register architectural designs for industrial design protections.
This article focuses on architectural design as intellectual property and how to get and enforce your protections.
Photo by Michael Shannon
Copyright Protections for Industrial Designs
The most applicable IP right for architectural designs is copyright protection which focuses on original works of art. Copyright protections apply by default to the person that created the design.
That means a person can still file an infringement lawsuit against another even when they do not have official documentation to prove ownership of copyrights to their architectural design. However, a lack of documentation can make the process much more complicated, so it is always best to register your designs for protection.
Copyright owners have exclusive rights to their designs and the legal right to stop any person from reproducing their work without their express consent. Also, copyright owners can still pursue an infringement lawsuit against persons that create derivatives based on their original creations or anything that closely resembles their design.
Industrial Design Protections
Industrial design protections focus on the aesthetics of an architectural design, including shape, configuration, patterns, and ornamentation. Industrial design protections can apply even when the architecture or design of an entire building is not protected by copyright.
The only requirement is that the subject of registration significantly improves the physical appearance of a building's appearance. This guide on industrial design registration benefits is a good read if you are considering registering your architectural designs.
Who Owns Industrial Design Rights to an Architectural Design?
Ownership of industrial design rights to an architectural design depends on the jurisdiction and other circumstances surrounding its creation. Typically, industrial design rights belong to the original creator of a piece of work. But there are situations where it may not.
For example, if the creator was an employee at the time of creating the architectural design for a home project and the creation was made within the scope of their employment, then its rights belong to the employer. If the designer is an independent contractor, the rights to their designs belong to them.
However, if a rights transfer were part of the contract agreement, the contracting entity would own the design rights. If you are signing a contract with a client, it is a good idea to have a lawyer go through the contract to ensure that you do not sign a contract with terms you may not be comfortable with.
Industrial design protections run for a specific time that can vary with jurisdictions. Under Canadian IP laws, industrial design rights are enforceable for 15 years from registration. After the registration period's lapses, any other entity can recreate the designs without infringing on the creator's rights.
Geographical Limitations
IP protections are limited to geographical boundaries. That means registering your IP in one country does not guarantee that you will enjoy similar protections in other countries.
To enjoy IP protections in other countries, you may need to register your designs for copyright protections in those countries or, even better, register your IP rights with the World Intellectual Property Organization, which guarantees protections in over 190 countries.
While not always a requirement, the general practice for registration involves registering your IP rights in your country of origin and then registering them under WIPO.
Enforcement of Rights
Industrial design rights registration makes enforcing your rights much easier but does not guarantee that other persons will not try to infringe on your rights. So after registering your designs for IP protections, you will still be responsible for policing your IP rights for infringement. Alternatively, you can pay an IP agency to do the policing.
If you are aware of a case of infringement, the first course of action should be to contact an intellectual property lawyer.
Your lawyer will examine your case to determine if it meets the legal threshold for infringement. If it does, they will initiate a correspondence with the infringing party by sending a cease and desist letter.
A cease and desist letter is a legal document sent to an infringing party informing them of your awareness of their infringement while requiring that they stop it.
In most cases, the cease and desist letter is more like extending an olive branch for an amicable resolution to an infringement case. Under such circumstances, a positive response from the infringing party can help strike an out-of-court agreement.
If the infringing party is unwilling to cooperate or the damage is extensive, you can choose to file a lawsuit. If successful, the infringing party will get orders from the court to stop the infringement and be required to pay any damages resulting from the violation.
Author : Sari Cada
