On October 10, 2024, the fourteenth session of the Intellectual Property Advisory Center for exporters is held
A refugee from Ukraine turned to a consultation point with the question of how to protect her development in the form of an orthopedic pillow for the convenience of sleeping a patient with a broken hip.
A citizen of Ukraine temporarily residing in the Republic of Belarus wants to establish the production of orthopedic pillows in the Belarusian territory. Such pillows facilitate the sleep of patients with various injuries of the lower extremities, primarily with a broken femoral neck.
From the answers of the consultant, it became clear that the pillow has its own design features, its original form of execution and will be marked with the original designation.
The consultant's answer was based on the forms of protection of products due to their design, including medical devices.
The main form of protection for such products is a patent form in the form of an invention or utility model.
In accordance with the Law of the Republic of Belarus "On Patents for Inventions, Utility Models, and Industrial Designs" dated December 16, 2002 No. 160-Z (hereinafter referred to as the Law), an invention that is granted legal protection is recognized as a technical solution in any field related to a product or method, as well as to the application of a product or method for intended for a specific purpose and satisfying the following conditions of patentability: novelty, inventive level and industrial applicability.
Since the product is characterized by its design features, it can be protected as a device. In accordance with the Regulation on the Procedure for drawing up an application for a patent for an Invention, conducting an expert examination on it and making a decision based on the results of the examination, devices as objects of invention include structures and products for which the following characteristics are used, in particular::
the constructive execution of the device, characterized by the presence and functional purpose of blocks, nodes, structural elements, their mutual arrangement, the form of execution of the elements and (or) the device as a whole.
the connection between nodes, elements,
the form of communication between the elements,
parameters and other characteristics of the elements and their interrelation,
the material from which the elements and (or) the device as a whole are made,
the environment that performs the function of the element.
In addition, the design of the pillow can also be protected through the device by a utility model patent. In accordance with the "Regulation on the procedure for drawing up an application for a patent for a utility model, conducting an expert examination on it and making a decision based on the results of the examination", devices as objects of a utility model include structures and products, namely the constructive execution of means of production and consumer goods, as well as their components.
The following device features are used to characterize the utility model:
the presence of a structural element
the presence of a connection between the elements
the relative position of the elements
the form of the element or device as a whole, in particular the geometric shape
the form of connection between the elements
the parameters and other characteristics of the element and their connection
the material from which the element or device as a whole is made, with the exception of features that characterize the substance as an independent type of product
the environment that performs the function of the element.
The form of an orthopedic pillow may be protected by an industrial design patent. In accordance with the Law, an industrial design, which is granted legal protection, is recognized as an artistic or artistic design solution of a product that determines its form and satisfies the following conditions of patentability: novelty and originality. In this case, a product is understood as an object of industrial or artisanal production.
In addition, the marking of an orthopedic pillow may be protected by a verbal, figurative, or combined trademark.
At the same time, the consultant asked if it would be possible to obtain protection for a three-dimensional trademark in the form of an orthopedic pillow.
Regarding the designation, which represents the form of the product itself, the consultant advised to prepare a package of documents confirming the intensive use of the trademark and its existing distinguishing ability. If there are no such documents (in the case when the designation is just beginning to be used), then one must be prepared to defend one's position when filing a petition for a re-examination after the refusal to register a three-dimensional trademark, and then to the Board of Appeal at the patent Authority and even to the Supreme Court. The consultant proceeded from the norm of the Law of the Republic of Belarus "On Trademarks and Service Marks", according to which it is not allowed to register as trademarks designations representing the form of goods or their packaging, determined solely or mainly by the essence or nature of the goods, the need to achieve a technical result, the essential value of the goods. The consultant separately drew the consultant's attention to the fact that if a three-dimensional designation representing a product is claimed, then it is the applicant who must prove that this form is sufficiently original, memorable and associative in order to distinguish the applicant's product from products from other manufactures.
