Form and Function – a conflict for IP law and design?

Many argue that the future of design lies in understanding the marriage of form with functionality. Intellectual Property law on the other hand, prefers to divide form from function. Is it possible to reconcile these two opposing approaches, and how does the design community respond to this divergent perspective of the legal fraternity? If you’re someone interested in UX design, industrial design, product design, fashion and the law, then this post is for you.

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Why is Intellectual Property important in the context of design?

Intellectual Property law provides the framework within which intangible original creative content can be protected. Put simply, Intellectual Property Rights or IPRs can help you protect your artistic and intellectual projects. IPRs are like title deeds over how you can use your creative properties – this is why they’re so important as business assets.

In the context of design, IPRs like copyright, patent and trademark can help individuals and companies to exclusively use, monetize or modify a protected design or design strategy.

What do you mean by form and function?

Form and function is basically the look and utility of a design. Form can said to be a reference to the aesthetic elements of a design. These include aspects like the shape, colour and ornamentation that characterize the design or object. Function implies utility or usefulness – the actual purpose for the design.

The above-mentioned definitions are purposely broad in an effort to drive home the point that nearly all consumer product designs are steeped in a heavy appreciation for a mix of form and functionality. Recent consumer trends are an indicator of this – most of us prefer devices that have functionally, aesthetic interfaces; we like household décor like lamps and furniture that double up as works of art; we want to invest in technology that we can wear (eg. Google glass) and accessories that are functional (eg. Finger rings designed to act as bottle openers). Consumers are attracted to designs that are beautiful as they are useful – like it or not, this seems to be the future of design.

Design is not just what it looks like and feels like. Design is how it works.

-Steve Jobs

So what seems to be the problem?

When it comes to protecting a functionally aesthetic design, Intellectual Property law prefers to break the design into separate elements, rather than treat it as a composite whole. This is because different IPRs are governed by different rules and can protect different characteristics of a work. Put simply, this means that you cannot protect your functionally aesthetic design under any one IPR only. This makes protecting your design a complicated, time consuming and expensive process.

How is this a problem for design?

I.         For starters, while a designer treats a product or strategy as a composite whole, IP law will look at it as a bunch of elements. This not only interferes with the creative vision, but can also adversely affect the way in which the design seeks protection. If it is not possible to adequately separate the utilitarian aspects from the aesthetic elements, then that product or design might have to forego protection completely, thereby leaving you defenceless against unauthorized copying.

II.         Copyright law will protect only aesthetic or ornamental aspects, ignoring the functional features of a design. For example, a chair with embroidered upholstery will be eligible for copyright protection only in its upholstery design, and not in the design of the chair. This principle poses a problem to persons working on unique designs of functional items – like say uniquely designed chairs like the Locus Leaning Seat or the Ribbon Rack. This sort of principle also poses major problems for those in the fashion industry. With respect to fashion, IP law is currently unable to provide designers adequate protection over their work. As a result, the law will only protect the particular pattern of the fabric and will completely ignore the actual shape and cut of the garment.

III.         If you are into User Experience design (more on how the law interacts with UX can be found here), then you know that design is really a combination of form and function. However, in such a scenario it becomes difficult to identify which aspects of the design ought to be protected under a design patent or a utility patent.

IV.         Trademark law and trade dress extends to those aspects that help distinguish one product design from the next. However figuring out whether it is your functional design element or aesthetic design element that distinguishes your product can be quite a challenge.

So what do I need to remember when dealing with design, functionality and IP law?

There are a couple of things worth remembering when working with functional design strategies:

(a)   There is a need for IP law to be considered from the initial stages of design creation, so consult your company lawyer or discuss your creative process with someone who has experience with IPRs. It might seem like a lot of work, but think about it this way – is it really worth your while, working hard on creating a design that you might not be able to protect because of a few legal loopholes?

(b)  If you are into industrial design, then ensure that you have introduced certain aesthetic and non-functional design elements that distinguish your product. The more functional your design, the harder it is to protect your design.

(c)   Avoid attaching too many functional uses to an ornamentation – this just complicates the process of protecting the design.
Doesn’t this mean that law doesn’t ‘get’ design?

This is something that many designers say after they find out about the form-functionality debate in IP law. Unfortunately, this is also an aspect that the legal fraternity is not too aware of, and this is where the design community needs to step in and make their opinions heard. Many believe that the future of design is in the effective marriage of utility and aesthetics. How then, can designers create in a world where the legal framework does not support their ideas and concepts? If the law needs to catch up with the progress of design, then it is as much the responsibility of the design community to represent their opinions and change the way in which law-framers view design.

What do you think about design, law, form and function? Is there a need for change and if so, where and how can we start? Leave a comment or do get in touch if you have something to say or ask about this post. 

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