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17 October 2016
An industrial model or design is the shape or ornamental aspect of an industrial product. An 'industrial model' is the three-dimensional aspect of the product, while an 'industrial design' is the bi-dimensional aspect (ie, a drawing). Industrial models and designs can be created for all types of industrial product, such as watches, electronics and clothing.
Decree 6,673/63, ratified by Law 16,478, governs industrial models and designs. It establishes that, in order to be registered, industrial models and designs must comply with certain ornamental and novelty requirements and must not be forbidden by law.
A product with constitutive elements that have a functional, rather than an aesthetic or ornamental purpose, cannot be registered as an industrial model or design. Instead, they can be protected as a utility model.
The author of an industrial model or design must register it with the National Institute of Industrial Property in order to protect it under Argentine law. The application can also be filed by the author's successor. Foreign parties can apply for registration on the basis of reciprocity.
The first registrant of an industrial model or design is presumed to be its author, unless evidence proving the contrary is presented.
When more than one party creates an industrial model or design, each party can register it and enjoy full protection and legal rights.
The rights holder of an industrial model or design can exploit and transfer it within five years from the registration date.
Registration is renewable for two consecutive five-year periods. A registration renewal petition must be filed no less than six months before the registration's expiry.
If an industrial model or design is substantially aesthetic, it is also possible to register it under Law 11,723 on Intellectual Property (Copyright), which refers to "models and works of art or science applied to commerce or industry". If the model or design can still be considered a work of art even after being dissociated from the product, ownership can be claimed by virtue of Law 11,723.
Under Section 28 of Decree 6,673/63, double protection is possible when a model or industrial design registered under the decree is also registered under Law 11,723. However, the rights holder cannot claim protection under both laws simultaneously in the judicial defence of its rights.
The protection offered by each law is different: if the work is registered under Decree 6,673/63, it will be protected for a five-year period that can be extended for two additional five-year periods. Conversely, if the work is registered under Law 11,723, it will be protected for the duration of the author's life plus 70 years from January 1 of the year following his or her death.
For further information on this topic please contact Daniel R Zuccherino at Obligado & Cia by telephone (+54 11 4114 1100) or email (email@example.com). The Obligado & Cia website can be accessed at www.obligado.com.
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