INTRODUCTION:
The moment we are born; toys and dolls hold a special place in our hearts. We grow up playing with them and when we are old enough, we turn them into collectibles and antiques. The toy story never ends! During the 1970s and 1980’s, collecting and adorning your living space with vintage dolls and traditional toys was a huge trend. The Russian Matryoshka dolls, Tanjore Thalayati Bhommai (or otherwise known as Tanjore Bobble heads or roly poly toys), Kondapalli toys, the Channapatana Dolls decked the elite and Indian middle-class homes. Although, over the years, the vintage and traditional toys have become outdated; in the recent past, we have been witnessing revamped and improvised versions of traditional dolls. The Indianised version of Russian Dolls, the bobble heads which resemble the characters played by celebrities, the customised miniature dolls are the trendsetters and tops the charts of home decor websites in India. The first thing that crossed my mind was how are these toys and dolls are protected under the IP Regime! So read on to find out!
Depending on the nature of the toys and dolls created by you, you may succeed in obtaining one or any of the Intellectual property protection for the toys & dolls designed by you.
1. DESIGN PROTECTION:
A design is the exterior appearance of an article including the features of shape, configuration, pattern, ornament or composition of lines or colors applied to any article in two dimensional or three dimensional or both forms and the finished article appeals to and is judged solely by the aesthetic appearance. The toys and dolls can be the subject matter of a Design Registration and protection can be sought in the features of the shape, configuration and the composition of lines of the wooden dolls. However, a functional aspect is beyond the purview of Designs Act.
In order to claim a design protection, the following criteria must be satisfied –
a)New or original;
b) Not previously published in any country;
c) Reproducible by industrial means;
d) Not contrary to public order or morality;
e) Significantly distinguishable from known designs or combination of known designs;
f) Not comprised of or containing scandalous or obscene matter;
g) Appealing to the eye; and
h) Not including anything that is in substance a mere mechanical device.
2. WHETHER DOLLS AND TOYS FALL WITHIN THE PURVIEW OF COPYRIGHT ACT, 1957:
The Copyright law extends protection to works of art which are a result of original authorship which shall confer protection to toys and dolls due to their artistic elements. It is important to keep in mind that copyright law does not protect any useful aspects of your craft. Taking into consideration the ornate designs and the artistic elements, the artistic representation of these toys and dolls such as sketches, images, paintings or drawings can be protected under copyright law as an artistic work.
However, the real glitch in conferring Copyright protection to toys/ dolls is Section 15 of the Copyright Act, 1957, according to which, the Copyright in any design, which is capable of being registered under the Designs Act but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his license, by any other person.
The Delhi Court in the case OK Play India Ltd. v. Mayank Aggarwal & Ors has also observed that if a design is applied to an article and re-produced for more than 50 times by industrial process after making a drawing then the drawing cannot be treated disjunctively from the said design and the copyright cannot be vested in such drawing. Hence, considering the judgment and plethora of cases in this regard, it would be prudent not to seek copyright protection for toys and dolls.
3. TRADE MARK PROTECTION:
If you have chosen any unique names for your toys, the Trade Mark Act can confer protection to the name of the toy/doll. The Trade Mark Act may also protect appearance, packaging, two and three dimensional images of the dolls and toys. If you have managed to come out with a unique, novelty and distinctive feature for your toys and dolls, then the shape of the toys and dolls as well as the visual appearance may also be protected under the as a shape mark.
CONCLUSION:
As a concluding note, if you have invested a huge amount of time in designing a unique miniature doll/ toy with a high level of creativity, it would be prudent to seek IP protection for your creations. In order to avoid toy wars, always ensure that you are not infringing copyrighted or trademarked protected works.