¿Can holograms be protected as an industrial design under Colombian design law? This is a question that I will try to address in the following discussion.
By definition, a hologram is a visual representation of an object or image that is produced using light in a way that creates the appearance of depth or three-dimensionality. 3D holograms create a real three-dimensional image that appears to float in space and allow different angles of the object to be seen by moving the observer’s point of view, while 2D holograms (two-dimensional with depth effect) are widely used in banknotes, credit cards and security labels.
In a recent update from the USPTO regarding the guidance for examination of design patent applications related to computer generated interfaces or Icons, the USPTO has identified additional types of patent eligible designs that provide design patent protection for computer-generated interfaces and icons when the appearance of the interface or icon is (i) separated from the computer, computer display, or computer system that generates it and (ii) wherein said interface or icon is more than a transient or disembodied picture or three-dimensional image.
On the other hand, under our design law (Decision 486), an industrial design is considered the particular appearance of a product that results from any arrangement of lines or combination of colors, or any two-dimensional or three-dimensional outward shape, line, outline, form, texture, or material. However, ¿can a hologram, which is considered as a visual representation of an object, be considered a product as such?
Although our design law does not considered holograms as a specific example of design protection, our design law clearly stablishes that a design is the appearance of a product resulting from any arrangement of lines in a dimensional or three-dimensional shape; therefore, we should ask ourselves whether a visual representation of an object can be regarded as a product as such. ¿Does said product need to be in physical form for it to be considered an industrial design? Although our law does not clarify whether said product needs to be in physical form, it does say that the product needs to have a particular appearance. Therefore, could the appearance of a hologram be sufficient to be classified as an industrial design even tough said hologram does not correspond to a physical product?
Now, under the guidelines for the examination of industrial designs of the Andean Community (CAN), a hologram is an industrial product, and its design could be registered considering that the design of a hologram corresponds to its appearance as seen by the user or consumer. According to CAN, the hologram regarded as a product would be considered as a surface decoration or ornamentation and therefore subject to registrability.
The CAN also states that a hologram can be used to create the appearance of other products wherein said hologram can be applied to the surface of a product to give it a novel look and appearance. For example, an embedded hologram in the design of a handbag, a fruit bowl, or a garment can result from applying a hologram to the product’s surface. In this case, the industrial design could be registered and classified in the class corresponding to the product incorporating the hologram.
According to the above, the CAN seems to suggest only 2D holograms in the sense that a hologram should be applied to the surface of a product to give it a novel look. Therefore, the above definition would potentially exclude 3D holograms which are visual representations of an object that create a real three-dimensional image that appears to float in space.
On the other hand, the CAN also states that a design should have industrial application and that this condition is met “whenever the product or article that embodies the design can be manufactured”. It also states that “although the purpose of industrial design is aesthetic, it must be embodied in utilitarian articles so that it fulfills its true function; that is, to serve as an element of attraction for consumers in their choice of products”. According to CAN, this means that Industrial designs are materialized in functional and utilitarian articles. In this sense, 3D holograms would also be potentially excluded from registrability as not complying with the condition of being manufactured and materialized.
In consequence, while a highly recognized jurisdiction such as the USPTO now addresses the requirements for holograms to be accepted as industrial designs, Colombian design law is yet to clarify how to properly address the protection of 3D-holograms.
Also, although not legally binding under Decision 486, given that they serve as guidance for examiners, the guidelines for the examination of Industrial designs could be a starting point for the examination and potential acceptance of 2D-holograms as industrial designs. Furthermore, although the design guidelines do not expressly consider 3D designs as potential subject matter for protection, I believe that decision 486 leaves room to consider and discuss the registrability of 3D holograms as design applications since they could be considered products with a particular appearance even though they are not materialized or manufactured products.
