Protection of Jewellery

Protecting jewellery with the aid of intellectual property rights is a topic of interest which sparks curiosity. While copyright is concerned with the creative part of jewellery, design is concerned with the shape, configuration, pattern, and mix of lines or colours in two or three-dimensional forms. Additionally, the jewellery’s brand name and logo may be protected under the purview of the Trade Marks Act.

PROTECTION AS COPYRIGHT OR DESIGNS

To decide whether jewellery can be protected through copyright or design laws, it is necessary to understand the difference between the two. Section 2(c) of the Copyright Act 1957 states that a copyright covers what is referred to as an artistic work, when interpreted in relation to the protection of jewellery through intellectual property, it may be deemed that the initial artistic sketch on which the design is based will be subject to copyright protection. When it comes to design, it may be held that the shape, configuration, pattern or composition of lines or colours applied to any article in either two or three-dimensional or both formed by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye will be covered by the related statute. This signifies that it does not cover artistic work but rather the features of the product that make it more attractive to the consumer.

In deciding whether the manufacture of jewellery from the initial sketch is a right of adaptation or reproduction, in the case of Pranda Jewellery v. Aarya 24K the the Hon’ble Bombay High Court held that the drawings, as well as the reproduction of it in gold plate in three dimensional form constituted artistic work and gave the judgment that the right to manufacture jewellery from the sketch is clearly a right of reproduction. However in the case of A. Sirkar v. B. Sarkar Johuree it was claimed that the jewellery was the result of an ‘artistic craftsmanship’. After examining the above cases, it is difficult to predict whether a single piece of jewellery will be considered an artistic work or a design.

Section 2(a) of the Copyright Act, 1957 defines adaptation in relation to an artistic work as ‘any use of such work involving its rearrangement or alteration’ and also as ‘the conversion of the work into a dramatic work by way of performance in public or otherwise’. Section 14(c)(i) grants the copyright holder the exclusive right of reproduction in case of artistic works, in ‘any material form, including depiction in two-dimensions of a three-dimensional work’.

With all this being said, it may be concluded that since jewellery is replicated in an exact manner in physicality after observing the sketch, it is reproduction. Adaptation would have denoted slight alterations from the initial sketch on paper. No matter if the jewellery is covered by copyright law or design legislation since the underlying work is covered by copyright law, reproduction or adaptation, depending on the specific item of jewellery, would still be applicable.

The safest course of action would be to register jewellery designs under the Designs Act, 2000 if a jeweller intends to make more than fifty applications of a particular jewellery design. If the plan is to make fewer than fifty copies, however, it does not seem that non-registration would be an issue. The Designs Act of 2000’s Section 4 prohibits the registration of a design that “has been disclosed to the public anywhere in India or in any other country by publication in tangible form or by use or in any other way prior to the filing date, or where applicable, the priority date, of the application for registration.” If the decision regarding the number of copies has not already been made, the designs should be filed for registration before marketing and sale.

PROTECTION AS TRADEMARK OR GEOGRAPHICAL INDICATION

Surprisingly, jewellery may also be classified as a geographical indication in India. Owing to the diversity in India, jewellery from different parts of the country has distinct styles. India’s rich history has also contributed to making jewellery from different parts of the country a cultural identity for different communities. There are instances of communities who have been engaged in creating jewellery as part of their generational trade for centuries. Examples of jewellery that have special cultural significance are Tarakasi Jewellery and Meenakari. These forms of jewellery fall under the banner of Traditional Cultural Expressions (TCEs) and have been recognized by the WIPO. The lack of legislation for TCEs has left such heritage vulnerable to infringement. Due to this, if one wishes to protect their TCE, they have to either protect it in the form of a Certified Trademark (CTM) or, a Geographical Indication (GI) or both. Names such as ‘Tarakasi’ and ‘Meenakari Jewellery’ could be protected as CTM. However, a precondition for CTM registration is that there should be a body for certifying the products. This would require that the creators of jewellery come together to form a governing body. With this being said, jewellery has been assigned the status of Geographical Indication previously such as the Silver Filigree of Karimnagar.

As there appears to be no link between the characteristics of the jewellery and their place of origin, it does raise questions regarding the basis on which the GIs have been granted. In the case of jewellery, the raw materials such as gold, silver, and stones are generally sourced from other places and this could create a problem when trying to register GIs. The lack of TCE protection has forced the creators of traditional jewellery to shoehorn their products into GI protection, which is clearly not meant for products that do not derive any characteristics from their geographical origin.

Though a sui generis framework for TCEs would be ideal, in its absence, the options remaining for producers of TCEs are a piecemeal combination of copyright, design, certification marks, passing off and GIs with the creators bearing the brunt of legal deficiencies.