With rising standard of living, there has been a shift in people’s perception about the jewellery. The importance that the consumer attached with the weight, is now been shifted to designs. The change has had another byproduct, that is, emergence and growth of jewellery designers in the industry. With creativity coming into the picture, and the industry blurring all political boundaries, it becomes pertinent to known about intellectual property right. Like any other creative field, jewellery designers too, need to protect their designs from being copied.%% Designers should be cautious when attempting to evoke the designs of others and emphasize their jewellery's originality and distinctiveness to avoid legal problems down the road. The dominant concern of the law protecting designs of useful articles has been to keep design and utility separated. Our system, in the interest of enhancing competition, allows and indeed encourages imitation, unless the imitated object is entitled to be immunised from copying by qualifying for a copyright, or for a patent, or for protection from competition that is legally considered unfair. %% Jewellery design is determined by its own legal characteristics. Protection of designs is classified under the Patent Law, while statutes on industrial design are clouded by a term ‘works of applied art’. Innovative jewellery designs or manufacturing techniques have a particular value to its creator and as such they should be guarded against their unauthorised use by filing patents with proper governmental agencies. The designer should understand the importance, difference and application of Patents, Trademarks and Copyright etc. %% India does not have a law specialised in protecting industrial designs. The inexplicit scope of protection leads to confusion regarding the operation of protection system. Much of the researches are library and internet based. %% {{Copyright }} $$ Copyright holders own a bundle of exclusive rights in their original works, including rights of reproduction, distribution, and the right to create additional works derived from their originals. %% Thus, someone other than the copyright owner, who reproduces or distributes a copyrighted product without the owner’s authorisation and who can be shown to have had access to the infringed product either directly or circumstantially, would be subject to penalties for infringement. Since most jewellery items comprise non-original designs already in the public domain (circles, squares, loops, etc.), many copyright disputes involving Jewellery focus on the factual determination of whether the combination of several common elements in a piece of Jewellery is sufficiently original such that the piece deserves copyright protection. %%

{{Validity and Protectability}} $$ Though a work’s protectability under copyright law does not require federal registration, such registration is prima facie evidence of a design’s originality. The burden thus shifts to an alleged infringer to prove that despite the designer’s federal registration, the design in question is either insufficiently original or is simply not a copyright-protectable creation. %% In Van Cleef & Arpels Logistics, S.A.V Jewellery, the court held that one of Van Cleef & Arpel’s designs, a military clover insignia, was copyrightable. The court came to this conclusion, despite the commonness of the quatrefoil shape and metal frame, because the arrangement of the elements was sufficiently original. Once a valid copyright in the military clover insignia was established, the Court determined that the Defendant’s Jewellery was ‘substantially similar’ to Van Cleef’s copyright protected design and was therefore infringing. The determination was made under the following two-part test: %% (1) Whether the Defendant’s product’s ideas, patterns, themes, organisation, and other objective details were substantially similar to those of Van Cleef, the original designer, and %% (2) Whether a lay observer would find the ‘concept and feel’ of the Defendant’s product designs to be substantially similar to those of Van Cleef’s. %% Alternatively, the court in the case of Herbert Rosenthal Jewellery Corp. v/s Honora Jewellery Co. held that while a determination of substantial similarity should be based on an average layman’s observation, circumstances may require further examination. %% Alternatively: Herbert Rosenthal Jewelry Corp. v/s Honora Jewelry Co.: {[]}P’s Claim: Manufacturer of jewelled turtle pin, which was made of nugget gold and which contained 10 gems on the turtle's back, brought action against D for copyright infringement. {[]}D’s Claim: In nature, a turtle has at least 10 vertebrae segments on its shell, so this was not evidence of copying. {[]}Outcome: P’s pin was not infringed by D’s jewelled pin, which was made of similar material and which also contained 10 gems on the turtle's back, but which had slightly different design with respect to turtle's head, feet, and tail. %% {[]}Rationale: The court analyzed each of the pins shell markings, manufacturing methods, metal thickness, and even whether the turtle’s head had a mouth. The inescapable characteristic of a turtle – its shell—limited the extent to which a designer could deviate from another’s design. %% Purpose of the copyright laws is to protect original designs from being copied, not to convey to the proprietor any right to exclude others from the market place for similar items. The court noted the possibly inferior characteristics of the defendant’s example. Predictably, the court granted the defendant’s motion for summary judgment and, held ‘there is nothing anyone can design or manufacture which someone else cannot make worse and sell for less.’ %% Nevertheless, these ‘substantial similarity’ considerations warn ‘inspired by’ jewellery designers that protectable ‘creations’ require a minimum amount of originality. If a designer fails to meaningfully distinguish their ‘inspired by’ design from an original work it will likely raise infringement concerns. It is the size, shape, proportion, and ornamentation of products that will be compared to the original producer’s design. %%

{{Damages}} $$ The Copyright Act of India provides rightholders following legal gears for enforcing their rights. $$ (1) The Copyright Board and $$ (2) The Courts. $$ Legal remedies include imprisonment and/or monetary fines - depending upon the gravity of the crime.$$ The infringement of copyright is considered as an offender and is punishable with a minimum of six months imprisonment that may extend to three years and a fine between 50,000 to Rs 2 lakhs. The 1994 Amendment has incorporated a special penal provision for knowingly using and infringing computer software. The punishment provided for this act is imprisonment for a term of seven days to a maximum of three years and a fine between 50,000 to Rs 2 lakhs. In case the infringing copy of the computer software is used not for pecuniary gain or in the course of trade or business, the imprisonment can be relaxed and fine can maximum go up to Rs 50,000. %% In calculating these statutory damages, the law allows the court to increase or decrease the total amount based on the nature of the infringement itself. If the court finds willful infringement of a copyrighted design, it has the legal authority to increase the statutory damage award. %% {{Trademark:}} $$ Trademark protection reflects similar considerations to copyright law. In the case of ‘inspired by’ jewellery designs, trademark concerns deal largely with the products particular ‘trade dress.’ Originally, the definition of trade dress was confined to the overall appearance of a products packaging or ‘dressing’. Gradually, this definition has expanded to include the design of the product itself. According to the Trade Marks Act, 1999, “Trade mark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.” %% {{Trade dress}} $$ A trade dress artifact serves as a source identifier when consumers recognise a product’s trade dress and immediately associate the product with a particular business or manufacturer. Any of the above-mentioned things copied, shall, unless the person proves that he acted without intent to defraud, be punishable with imprisonment for a term not less than six months but that may extend to three years, and with fine not less than Rs 50,000 and that may extend to Rs 2 lakh. %% A Jewellery design’s trade dress consistently includes the combination of general elements that, when taken as a whole, combine to create a unique and distinct source identifier. Just as under Copyright Law, each individual aesthetic feature may not be protectable, however, the overall impression created through their combination may be. For example, a standard circle with a gold chain will most likely not be protectable for trade dress. However, an otherwise simple design could be protectable under trade dress law if it had a few additional specific elements such as three strategically placed diamonds or special engravings. %% In order to succeed on claims for trade dress infringement, a plaintiff must prove two factors: %% (1) that their design is non-functional$$ (2) and their design is distinctive or has acquired a secondary meaning prior to the alleged infringer’s entry into the market.$$

{{Functionality}} $$ Functionality is the quality of serving some useful purpose. For example, a chair manufacturer cannot claim the four legs of its chair as a trade dress. Those four legs are a useful and functional aspect of that chair. Should a competitor come along and make another chair that has four legs, the competitor has not infringed on the manufacturer’s trade dress because those legs serve a purely functional purpose. %% Whether Jewellery design is functional will depend on the effect that protecting a specific design may have on marketplace competition. %% Court’s decision is usually focused on how the purchasing public sees an item or design and then relates that visual picture to a single company. The courts allowed a claim of trade dress infringement to be based on two concepts (one of which had to be proven for an action to be considered infringement): %% {[]}The product or item must be ‘inherently distinctive’ in design, such that the purchasing public would immediately recognise the product or item as associated with a single (although perhaps anonymous) source. {[]}Alternatively, through sales and advertising over an extended period, the design of the product or item must have acquired distinctiveness, that is, recognition that it comes from a single source, for which the legal term ‘secondary meaning' is applied. $$ The Supreme Court ruled that trade dress in a product design could never be classified as ‘inherently distinctive’ and is therefore protectable merely by its own image. Rather, it was declared that a party asserting trade dress infringement of a product design must always prove that the product design had acquired distinctiveness through well-established exposure in the marketplace and therefore had true secondary meaning. %%

Thus, for a jewellery design to be protectable under current trade dress theory it must be shown to have achieved secondary meaning as a source indicator well beyond its ornamental appearance. %% Thus, protection for unique jewellery configuration designs by means of trade dress is very difficult to obtain. A jewellery product design must be specific and detailed even to be eligible for trade dress protection. Consequently, from a legal standpoint, conflict may be unavoidable. If the jewelry design is too generalised, it is not eligible for trade dress protection; but if it's too detailed it will, in most instances, convey only an ornamental impression rather than a source-indicating impression and won’t be protectable by trade dress. %% For jewellery designs and configurations, trade dress should be considered the last legal vehicle by which to protect the design. Copyright protection is available for jewellery designs that are sufficiently creative and artistic. Design patent protection, which focuses on the ornamental look of a product, is available for designs that are new and sufficiently different compared with earlier designs. Copyright or design patent protection is far simpler to obtain than trade dress protection and can be more easily enforced. %% Uniqueness Once a plaintiff establishes the non-functionality of its design, it next must prove that its design has acquired distinctiveness through secondary meaning. This requires establishing that the combination of elements in the design identifies the claimant’s brand as the responsible brand, and that the general public actually identifies the design with the brand. Several factors are considered, including: %% (1) Consumer surveys; $$ (2) Evidence of intentional copying by the defendant; $$ (3) Advertisement expenditures; $$ (4) Sales success; $$ (5) Length and exclusivity of use; and $$ (6) Unsolicited media coverage.$$ Due to the factual intensity involved, judicial determinations of secondary meaning are unpredictable. Jewellers with particularly famous designs, however, can take advantage of this fact-specific determination by conducting surveys, producing their advertising budget, and producing sales receipts to support their argument in favour of finding distinctiveness. %% {{Damages}} $$ Artistes who successfully sue for trade dress infringement are entitled to recover the defendant’s profits resulting from sale of the infringing goods, any damages the artiste suffers as a result of the infringement, and the costs of the action. Just as with copyright infringement, whether the trade dress infringement is found to be ‘willful’ provides the court some discretion in adjusting the damage award. Willful trade dress infringement can result in a damage award being increased threefold. %% Common law unfair competition, by nature, is a much broader claim than trademark or trade dress infringement. A claim of common law unfair competition simply consists of an allegation that a competitor’s product will mislead the public into believing that the competitor’s product was actually designed by the original producer. %% In the absence of any explicit claims of sponsorship, affiliation, or endorsement from another jewellery designer, the original designer would likely not succeed on a claim of common law unfair competition. %% Despite the difficulty in proving claims of unfair competition, a successful claimant may obtain: %% 1) An injunction of further use of the offending product, $$ (2) An award of actual damages including special damages and loss of profits, (3) Punitive damages, $$ (4) An accounting to the injured party by the offending party for all profits arising out of the offending product’s sale, and $$ (5) The destruction of any offending objects still in the offending party’s possession or control.$$

{{Conclusion}} $$ The relationship between high-end Jewellery designers and their copy-cats present unique issues for adjudication in copyright infringement, trademark infringement, and unfair competition cases due to the fact that many high-end jewellery designs consist of a combination of elements that exist in the public domain. Alone, these elements would not qualify for protection under either copyright or trade dress law, but when combined they may qualify for both. Such determinations are highly fact specific, and may present interesting quandaries for students, legal professionals, judges, and the increasingly prominent field of intellectual property. %% To avoid legal problems, Jewellery designers should: %% (1) Err on the side of caution when attempting to mimic any preexisting design; $$ (2) Refrain for associating the piece with the brand responsible for any preexisting sources of ‘inspiration’.$$ (3) Emphasise the piece’s origin with the Jewellery designer’s enterprise. The conclusion is brought that the mode of “specific law protection” is strongly requested and supported. Moreover, in the paper several macroscopically and microcosmic suggestions are given to Jewellery enterprises, so that the Indian Jewellery designs can enjoy a more suitable and powerful intellectual property protection. $$

With rising standard of living, there has been a shift in people’s perception about the jewellery. The importance that the consumer attached with the weight, is now been shifted to designs. The change has had another byproduct, that is, emergence and growth of jewellery designers in the industry. With creativity coming into the picture, and the industry blurring all political boundaries, it becomes pertinent to known about intellectual property right. Like any other creative field, jewellery designers too, need to protect their designs from being copied.%% Designers should be cautious when attempting to evoke the designs of others and emphasize their jewellery's originality and distinctiveness to avoid legal problems down the road. The dominant concern of the law protecting designs of useful articles has been to keep design and utility separated. Our system, in the interest of enhancing competition, allows and indeed encourages imitation, unless the imitated object is entitled to be immunised from copying by qualifying for a copyright, or for a patent, or for protection from competition that is legally considered unfair. %% Jewellery design is determined by its own legal characteristics. Protection of designs is classified under the Patent Law, while statutes on industrial design are clouded by a term ‘works of applied art’. Innovative jewellery designs or manufacturing techniques have a particular value to its creator and as such they should be guarded against their unauthorised use by filing patents with proper governmental agencies. The designer should understand the importance, difference and application of Patents, Trademarks and Copyright etc. %% India does not have a law specialised in protecting industrial designs. The inexplicit scope of protection leads to confusion regarding the operation of protection system. Much of the researches are library and internet based. %% {{Copyright }} $$ Copyright holders own a bundle of exclusive rights in their original works, including rights of reproduction, distribution, and the right to create additional works derived from their originals. %% Thus, someone other than the copyright owner, who reproduces or distributes a copyrighted product without the owner’s authorisation and who can be shown to have had access to the infringed product either directly or circumstantially, would be subject to penalties for infringement. Since most jewellery items comprise non-original designs already in the public domain (circles, squares, loops, etc.), many copyright disputes involving Jewellery focus on the factual determination of whether the combination of several common elements in a piece of Jewellery is sufficiently original such that the piece deserves copyright protection. %%

{{Validity and Protectability}} $$ Though a work’s protectability under copyright law does not require federal registration, such registration is prima facie evidence of a design’s originality. The burden thus shifts to an alleged infringer to prove that despite the designer’s federal registration, the design in question is either insufficiently original or is simply not a copyright-protectable creation. %% In Van Cleef & Arpels Logistics, S.A.V Jewellery, the court held that one of Van Cleef & Arpel’s designs, a military clover insignia, was copyrightable. The court came to this conclusion, despite the commonness of the quatrefoil shape and metal frame, because the arrangement of the elements was sufficiently original. Once a valid copyright in the military clover insignia was established, the Court determined that the Defendant’s Jewellery was ‘substantially similar’ to Van Cleef’s copyright protected design and was therefore infringing. The determination was made under the following two-part test: %% (1) Whether the Defendant’s product’s ideas, patterns, themes, organisation, and other objective details were substantially similar to those of Van Cleef, the original designer, and %% (2) Whether a lay observer would find the ‘concept and feel’ of the Defendant’s product designs to be substantially similar to those of Van Cleef’s. %% Alternatively, the court in the case of Herbert Rosenthal Jewellery Corp. v/s Honora Jewellery Co. held that while a determination of substantial similarity should be based on an average layman’s observation, circumstances may require further examination. %% Alternatively: Herbert Rosenthal Jewelry Corp. v/s Honora Jewelry Co.: {[]}P’s Claim: Manufacturer of jewelled turtle pin, which was made of nugget gold and which contained 10 gems on the turtle's back, brought action against D for copyright infringement. {[]}D’s Claim: In nature, a turtle has at least 10 vertebrae segments on its shell, so this was not evidence of copying. {[]}Outcome: P’s pin was not infringed by D’s jewelled pin, which was made of similar material and which also contained 10 gems on the turtle's back, but which had slightly different design with respect to turtle's head, feet, and tail. %% {[]}Rationale: The court analyzed each of the pins shell markings, manufacturing methods, metal thickness, and even whether the turtle’s head had a mouth. The inescapable characteristic of a turtle – its shell—limited the extent to which a designer could deviate from another’s design. %% Purpose of the copyright laws is to protect original designs from being copied, not to convey to the proprietor any right to exclude others from the market place for similar items. The court noted the possibly inferior characteristics of the defendant’s example. Predictably, the court granted the defendant’s motion for summary judgment and, held ‘there is nothing anyone can design or manufacture which someone else cannot make worse and sell for less.’ %% Nevertheless, these ‘substantial similarity’ considerations warn ‘inspired by’ jewellery designers that protectable ‘creations’ require a minimum amount of originality. If a designer fails to meaningfully distinguish their ‘inspired by’ design from an original work it will likely raise infringement concerns. It is the size, shape, proportion, and ornamentation of products that will be compared to the original producer’s design. %%

{{Damages}} $$ The Copyright Act of India provides rightholders following legal gears for enforcing their rights. $$ (1) The Copyright Board and $$ (2) The Courts. $$ Legal remedies include imprisonment and/or monetary fines - depending upon the gravity of the crime.$$ The infringement of copyright is considered as an offender and is punishable with a minimum of six months imprisonment that may extend to three years and a fine between 50,000 to Rs 2 lakhs. The 1994 Amendment has incorporated a special penal provision for knowingly using and infringing computer software. The punishment provided for this act is imprisonment for a term of seven days to a maximum of three years and a fine between 50,000 to Rs 2 lakhs. In case the infringing copy of the computer software is used not for pecuniary gain or in the course of trade or business, the imprisonment can be relaxed and fine can maximum go up to Rs 50,000. %% In calculating these statutory damages, the law allows the court to increase or decrease the total amount based on the nature of the infringement itself. If the court finds willful infringement of a copyrighted design, it has the legal authority to increase the statutory damage award. %% {{Trademark:}} $$ Trademark protection reflects similar considerations to copyright law. In the case of ‘inspired by’ jewellery designs, trademark concerns deal largely with the products particular ‘trade dress.’ Originally, the definition of trade dress was confined to the overall appearance of a products packaging or ‘dressing’. Gradually, this definition has expanded to include the design of the product itself. According to the Trade Marks Act, 1999, “Trade mark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.” %% {{Trade dress}} $$ A trade dress artifact serves as a source identifier when consumers recognise a product’s trade dress and immediately associate the product with a particular business or manufacturer. Any of the above-mentioned things copied, shall, unless the person proves that he acted without intent to defraud, be punishable with imprisonment for a term not less than six months but that may extend to three years, and with fine not less than Rs 50,000 and that may extend to Rs 2 lakh. %% A Jewellery design’s trade dress consistently includes the combination of general elements that, when taken as a whole, combine to create a unique and distinct source identifier. Just as under Copyright Law, each individual aesthetic feature may not be protectable, however, the overall impression created through their combination may be. For example, a standard circle with a gold chain will most likely not be protectable for trade dress. However, an otherwise simple design could be protectable under trade dress law if it had a few additional specific elements such as three strategically placed diamonds or special engravings. %% In order to succeed on claims for trade dress infringement, a plaintiff must prove two factors: %% (1) that their design is non-functional$$ (2) and their design is distinctive or has acquired a secondary meaning prior to the alleged infringer’s entry into the market.$$

{{Functionality}} $$ Functionality is the quality of serving some useful purpose. For example, a chair manufacturer cannot claim the four legs of its chair as a trade dress. Those four legs are a useful and functional aspect of that chair. Should a competitor come along and make another chair that has four legs, the competitor has not infringed on the manufacturer’s trade dress because those legs serve a purely functional purpose. %% Whether Jewellery design is functional will depend on the effect that protecting a specific design may have on marketplace competition. %% Court’s decision is usually focused on how the purchasing public sees an item or design and then relates that visual picture to a single company. The courts allowed a claim of trade dress infringement to be based on two concepts (one of which had to be proven for an action to be considered infringement): %% {[]}The product or item must be ‘inherently distinctive’ in design, such that the purchasing public would immediately recognise the product or item as associated with a single (although perhaps anonymous) source. {[]}Alternatively, through sales and advertising over an extended period, the design of the product or item must have acquired distinctiveness, that is, recognition that it comes from a single source, for which the legal term ‘secondary meaning' is applied. $$ The Supreme Court ruled that trade dress in a product design could never be classified as ‘inherently distinctive’ and is therefore protectable merely by its own image. Rather, it was declared that a party asserting trade dress infringement of a product design must always prove that the product design had acquired distinctiveness through well-established exposure in the marketplace and therefore had true secondary meaning. %%

Thus, for a jewellery design to be protectable under current trade dress theory it must be shown to have achieved secondary meaning as a source indicator well beyond its ornamental appearance. %% Thus, protection for unique jewellery configuration designs by means of trade dress is very difficult to obtain. A jewellery product design must be specific and detailed even to be eligible for trade dress protection. Consequently, from a legal standpoint, conflict may be unavoidable. If the jewelry design is too generalised, it is not eligible for trade dress protection; but if it's too detailed it will, in most instances, convey only an ornamental impression rather than a source-indicating impression and won’t be protectable by trade dress. %% For jewellery designs and configurations, trade dress should be considered the last legal vehicle by which to protect the design. Copyright protection is available for jewellery designs that are sufficiently creative and artistic. Design patent protection, which focuses on the ornamental look of a product, is available for designs that are new and sufficiently different compared with earlier designs. Copyright or design patent protection is far simpler to obtain than trade dress protection and can be more easily enforced. %% Uniqueness Once a plaintiff establishes the non-functionality of its design, it next must prove that its design has acquired distinctiveness through secondary meaning. This requires establishing that the combination of elements in the design identifies the claimant’s brand as the responsible brand, and that the general public actually identifies the design with the brand. Several factors are considered, including: %% (1) Consumer surveys; $$ (2) Evidence of intentional copying by the defendant; $$ (3) Advertisement expenditures; $$ (4) Sales success; $$ (5) Length and exclusivity of use; and $$ (6) Unsolicited media coverage.$$ Due to the factual intensity involved, judicial determinations of secondary meaning are unpredictable. Jewellers with particularly famous designs, however, can take advantage of this fact-specific determination by conducting surveys, producing their advertising budget, and producing sales receipts to support their argument in favour of finding distinctiveness. %% {{Damages}} $$ Artistes who successfully sue for trade dress infringement are entitled to recover the defendant’s profits resulting from sale of the infringing goods, any damages the artiste suffers as a result of the infringement, and the costs of the action. Just as with copyright infringement, whether the trade dress infringement is found to be ‘willful’ provides the court some discretion in adjusting the damage award. Willful trade dress infringement can result in a damage award being increased threefold. %% Common law unfair competition, by nature, is a much broader claim than trademark or trade dress infringement. A claim of common law unfair competition simply consists of an allegation that a competitor’s product will mislead the public into believing that the competitor’s product was actually designed by the original producer. %% In the absence of any explicit claims of sponsorship, affiliation, or endorsement from another jewellery designer, the original designer would likely not succeed on a claim of common law unfair competition. %% Despite the difficulty in proving claims of unfair competition, a successful claimant may obtain: %% 1) An injunction of further use of the offending product, $$ (2) An award of actual damages including special damages and loss of profits, (3) Punitive damages, $$ (4) An accounting to the injured party by the offending party for all profits arising out of the offending product’s sale, and $$ (5) The destruction of any offending objects still in the offending party’s possession or control.$$

{{Conclusion}} $$ The relationship between high-end Jewellery designers and their copy-cats present unique issues for adjudication in copyright infringement, trademark infringement, and unfair competition cases due to the fact that many high-end jewellery designs consist of a combination of elements that exist in the public domain. Alone, these elements would not qualify for protection under either copyright or trade dress law, but when combined they may qualify for both. Such determinations are highly fact specific, and may present interesting quandaries for students, legal professionals, judges, and the increasingly prominent field of intellectual property. %% To avoid legal problems, Jewellery designers should: %% (1) Err on the side of caution when attempting to mimic any preexisting design; $$ (2) Refrain for associating the piece with the brand responsible for any preexisting sources of ‘inspiration’.$$ (3) Emphasise the piece’s origin with the Jewellery designer’s enterprise. The conclusion is brought that the mode of “specific law protection” is strongly requested and supported. Moreover, in the paper several macroscopically and microcosmic suggestions are given to Jewellery enterprises, so that the Indian Jewellery designs can enjoy a more suitable and powerful intellectual property protection. $$

With rising standard of living, there has been a shift in people’s perception about the jewellery. The importance that the consumer attached with the weight, is now been shifted to designs. The change has had another byproduct, that is, emergence and growth of jewellery designers in the industry. With creativity coming into the picture, and the industry blurring all political boundaries, it becomes pertinent to known about intellectual property right. Like any other creative field, jewellery designers too, need to protect their designs from being copied.%% Designers should be cautious when attempting to evoke the designs of others and emphasize their jewellery's originality and distinctiveness to avoid legal problems down the road. The dominant concern of the law protecting designs of useful articles has been to keep design and utility separated. Our system, in the interest of enhancing competition, allows and indeed encourages imitation, unless the imitated object is entitled to be immunised from copying by qualifying for a copyright, or for a patent, or for protection from competition that is legally considered unfair. %% Jewellery design is determined by its own legal characteristics. Protection of designs is classified under the Patent Law, while statutes on industrial design are clouded by a term ‘works of applied art’. Innovative jewellery designs or manufacturing techniques have a particular value to its creator and as such they should be guarded against their unauthorised use by filing patents with proper governmental agencies. The designer should understand the importance, difference and application of Patents, Trademarks and Copyright etc. %% India does not have a law specialised in protecting industrial designs. The inexplicit scope of protection leads to confusion regarding the operation of protection system. Much of the researches are library and internet based. %% {{Copyright }} $$ Copyright holders own a bundle of exclusive rights in their original works, including rights of reproduction, distribution, and the right to create additional works derived from their originals. %% Thus, someone other than the copyright owner, who reproduces or distributes a copyrighted product without the owner’s authorisation and who can be shown to have had access to the infringed product either directly or circumstantially, would be subject to penalties for infringement. Since most jewellery items comprise non-original designs already in the public domain (circles, squares, loops, etc.), many copyright disputes involving Jewellery focus on the factual determination of whether the combination of several common elements in a piece of Jewellery is sufficiently original such that the piece deserves copyright protection. %%

{{Validity and Protectability}} $$ Though a work’s protectability under copyright law does not require federal registration, such registration is prima facie evidence of a design’s originality. The burden thus shifts to an alleged infringer to prove that despite the designer’s federal registration, the design in question is either insufficiently original or is simply not a copyright-protectable creation. %% In Van Cleef & Arpels Logistics, S.A.V Jewellery, the court held that one of Van Cleef & Arpel’s designs, a military clover insignia, was copyrightable. The court came to this conclusion, despite the commonness of the quatrefoil shape and metal frame, because the arrangement of the elements was sufficiently original. Once a valid copyright in the military clover insignia was established, the Court determined that the Defendant’s Jewellery was ‘substantially similar’ to Van Cleef’s copyright protected design and was therefore infringing. The determination was made under the following two-part test: %% (1) Whether the Defendant’s product’s ideas, patterns, themes, organisation, and other objective details were substantially similar to those of Van Cleef, the original designer, and %% (2) Whether a lay observer would find the ‘concept and feel’ of the Defendant’s product designs to be substantially similar to those of Van Cleef’s. %% Alternatively, the court in the case of Herbert Rosenthal Jewellery Corp. v/s Honora Jewellery Co. held that while a determination of substantial similarity should be based on an average layman’s observation, circumstances may require further examination. %% Alternatively: Herbert Rosenthal Jewelry Corp. v/s Honora Jewelry Co.: {[]}P’s Claim: Manufacturer of jewelled turtle pin, which was made of nugget gold and which contained 10 gems on the turtle's back, brought action against D for copyright infringement. {[]}D’s Claim: In nature, a turtle has at least 10 vertebrae segments on its shell, so this was not evidence of copying. {[]}Outcome: P’s pin was not infringed by D’s jewelled pin, which was made of similar material and which also contained 10 gems on the turtle's back, but which had slightly different design with respect to turtle's head, feet, and tail. %% {[]}Rationale: The court analyzed each of the pins shell markings, manufacturing methods, metal thickness, and even whether the turtle’s head had a mouth. The inescapable characteristic of a turtle – its shell—limited the extent to which a designer could deviate from another’s design. %% Purpose of the copyright laws is to protect original designs from being copied, not to convey to the proprietor any right to exclude others from the market place for similar items. The court noted the possibly inferior characteristics of the defendant’s example. Predictably, the court granted the defendant’s motion for summary judgment and, held ‘there is nothing anyone can design or manufacture which someone else cannot make worse and sell for less.’ %% Nevertheless, these ‘substantial similarity’ considerations warn ‘inspired by’ jewellery designers that protectable ‘creations’ require a minimum amount of originality. If a designer fails to meaningfully distinguish their ‘inspired by’ design from an original work it will likely raise infringement concerns. It is the size, shape, proportion, and ornamentation of products that will be compared to the original producer’s design. %%

{{Damages}} $$ The Copyright Act of India provides rightholders following legal gears for enforcing their rights. $$ (1) The Copyright Board and $$ (2) The Courts. $$ Legal remedies include imprisonment and/or monetary fines - depending upon the gravity of the crime.$$ The infringement of copyright is considered as an offender and is punishable with a minimum of six months imprisonment that may extend to three years and a fine between 50,000 to Rs 2 lakhs. The 1994 Amendment has incorporated a special penal provision for knowingly using and infringing computer software. The punishment provided for this act is imprisonment for a term of seven days to a maximum of three years and a fine between 50,000 to Rs 2 lakhs. In case the infringing copy of the computer software is used not for pecuniary gain or in the course of trade or business, the imprisonment can be relaxed and fine can maximum go up to Rs 50,000. %% In calculating these statutory damages, the law allows the court to increase or decrease the total amount based on the nature of the infringement itself. If the court finds willful infringement of a copyrighted design, it has the legal authority to increase the statutory damage award. %% {{Trademark:}} $$ Trademark protection reflects similar considerations to copyright law. In the case of ‘inspired by’ jewellery designs, trademark concerns deal largely with the products particular ‘trade dress.’ Originally, the definition of trade dress was confined to the overall appearance of a products packaging or ‘dressing’. Gradually, this definition has expanded to include the design of the product itself. According to the Trade Marks Act, 1999, “Trade mark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.” %% {{Trade dress}} $$ A trade dress artifact serves as a source identifier when consumers recognise a product’s trade dress and immediately associate the product with a particular business or manufacturer. Any of the above-mentioned things copied, shall, unless the person proves that he acted without intent to defraud, be punishable with imprisonment for a term not less than six months but that may extend to three years, and with fine not less than Rs 50,000 and that may extend to Rs 2 lakh. %% A Jewellery design’s trade dress consistently includes the combination of general elements that, when taken as a whole, combine to create a unique and distinct source identifier. Just as under Copyright Law, each individual aesthetic feature may not be protectable, however, the overall impression created through their combination may be. For example, a standard circle with a gold chain will most likely not be protectable for trade dress. However, an otherwise simple design could be protectable under trade dress law if it had a few additional specific elements such as three strategically placed diamonds or special engravings. %% In order to succeed on claims for trade dress infringement, a plaintiff must prove two factors: %% (1) that their design is non-functional$$ (2) and their design is distinctive or has acquired a secondary meaning prior to the alleged infringer’s entry into the market.$$

{{Functionality}} $$ Functionality is the quality of serving some useful purpose. For example, a chair manufacturer cannot claim the four legs of its chair as a trade dress. Those four legs are a useful and functional aspect of that chair. Should a competitor come along and make another chair that has four legs, the competitor has not infringed on the manufacturer’s trade dress because those legs serve a purely functional purpose. %% Whether Jewellery design is functional will depend on the effect that protecting a specific design may have on marketplace competition. %% Court’s decision is usually focused on how the purchasing public sees an item or design and then relates that visual picture to a single company. The courts allowed a claim of trade dress infringement to be based on two concepts (one of which had to be proven for an action to be considered infringement): %% {[]}The product or item must be ‘inherently distinctive’ in design, such that the purchasing public would immediately recognise the product or item as associated with a single (although perhaps anonymous) source. {[]}Alternatively, through sales and advertising over an extended period, the design of the product or item must have acquired distinctiveness, that is, recognition that it comes from a single source, for which the legal term ‘secondary meaning' is applied. $$ The Supreme Court ruled that trade dress in a product design could never be classified as ‘inherently distinctive’ and is therefore protectable merely by its own image. Rather, it was declared that a party asserting trade dress infringement of a product design must always prove that the product design had acquired distinctiveness through well-established exposure in the marketplace and therefore had true secondary meaning. %%

Thus, for a jewellery design to be protectable under current trade dress theory it must be shown to have achieved secondary meaning as a source indicator well beyond its ornamental appearance. %% Thus, protection for unique jewellery configuration designs by means of trade dress is very difficult to obtain. A jewellery product design must be specific and detailed even to be eligible for trade dress protection. Consequently, from a legal standpoint, conflict may be unavoidable. If the jewelry design is too generalised, it is not eligible for trade dress protection; but if it's too detailed it will, in most instances, convey only an ornamental impression rather than a source-indicating impression and won’t be protectable by trade dress. %% For jewellery designs and configurations, trade dress should be considered the last legal vehicle by which to protect the design. Copyright protection is available for jewellery designs that are sufficiently creative and artistic. Design patent protection, which focuses on the ornamental look of a product, is available for designs that are new and sufficiently different compared with earlier designs. Copyright or design patent protection is far simpler to obtain than trade dress protection and can be more easily enforced. %% Uniqueness Once a plaintiff establishes the non-functionality of its design, it next must prove that its design has acquired distinctiveness through secondary meaning. This requires establishing that the combination of elements in the design identifies the claimant’s brand as the responsible brand, and that the general public actually identifies the design with the brand. Several factors are considered, including: %% (1) Consumer surveys; $$ (2) Evidence of intentional copying by the defendant; $$ (3) Advertisement expenditures; $$ (4) Sales success; $$ (5) Length and exclusivity of use; and $$ (6) Unsolicited media coverage.$$ Due to the factual intensity involved, judicial determinations of secondary meaning are unpredictable. Jewellers with particularly famous designs, however, can take advantage of this fact-specific determination by conducting surveys, producing their advertising budget, and producing sales receipts to support their argument in favour of finding distinctiveness. %% {{Damages}} $$ Artistes who successfully sue for trade dress infringement are entitled to recover the defendant’s profits resulting from sale of the infringing goods, any damages the artiste suffers as a result of the infringement, and the costs of the action. Just as with copyright infringement, whether the trade dress infringement is found to be ‘willful’ provides the court some discretion in adjusting the damage award. Willful trade dress infringement can result in a damage award being increased threefold. %% Common law unfair competition, by nature, is a much broader claim than trademark or trade dress infringement. A claim of common law unfair competition simply consists of an allegation that a competitor’s product will mislead the public into believing that the competitor’s product was actually designed by the original producer. %% In the absence of any explicit claims of sponsorship, affiliation, or endorsement from another jewellery designer, the original designer would likely not succeed on a claim of common law unfair competition. %% Despite the difficulty in proving claims of unfair competition, a successful claimant may obtain: %% 1) An injunction of further use of the offending product, $$ (2) An award of actual damages including special damages and loss of profits, (3) Punitive damages, $$ (4) An accounting to the injured party by the offending party for all profits arising out of the offending product’s sale, and $$ (5) The destruction of any offending objects still in the offending party’s possession or control.$$

{{Conclusion}} $$ The relationship between high-end Jewellery designers and their copy-cats present unique issues for adjudication in copyright infringement, trademark infringement, and unfair competition cases due to the fact that many high-end jewellery designs consist of a combination of elements that exist in the public domain. Alone, these elements would not qualify for protection under either copyright or trade dress law, but when combined they may qualify for both. Such determinations are highly fact specific, and may present interesting quandaries for students, legal professionals, judges, and the increasingly prominent field of intellectual property. %% To avoid legal problems, Jewellery designers should: %% (1) Err on the side of caution when attempting to mimic any preexisting design; $$ (2) Refrain for associating the piece with the brand responsible for any preexisting sources of ‘inspiration’.$$ (3) Emphasise the piece’s origin with the Jewellery designer’s enterprise. The conclusion is brought that the mode of “specific law protection” is strongly requested and supported. Moreover, in the paper several macroscopically and microcosmic suggestions are given to Jewellery enterprises, so that the Indian Jewellery designs can enjoy a more suitable and powerful intellectual property protection. $$