Design Protection Infringement and Remedies
About Designs Act
Design & right to protection is an IPR that protects the visuals and objects of any design not solely within the framework of moral theory. In general, the design is only a naked eye view of any article. But the legal-language definition changes into features of the form, design, pattern, ornament, or composition of lines or colors applied to an article in two or three-dimensional or both formats by any manual, mechanical or chemical process or method, separate or combined, as appealed to and judged by the finished article.
With the exception of items, all items can be registered as design:
- No method of building or marking as defined in the Law of Trade and Markings of 1958 shall be included in it.
- There is also no ‘property mark’ defined in the Indian Penal Code, 1860, Section 479.
- No artistic work defined in Article 2(c) of the Copyright Act of 1957 is also included.
Rights attributed to design owner
Some exclusive rights have been acquired:
- Any registered design of an article shall be subject to the exclusive right.
- The exclusive right to display or publish items in which the design is already registered.
- Finally, the exclusive right to import must form part of the registered design for any sale purpose.
What constitutes infringement under Design Act?
The owner of a design rights registered may only work with the design or any other design similar to the design registered. If, for commercial reasons (i.e., private or home use is excluded) a third party fabricates or sells, etc., a registered design or any similar design, and if the owner is unable to do so, such an activity constitutes a design right infringement.
In the request for registration of the design and the attached drawings, the details of the registered design right are specified. However, since the scope of a design right extends to the registered design and to any similar design, the similarity of the design is a question of determining a design infringement (whether it is like it or not).
When making an effective assessment of similarity, after comparing the two designs and identifying resemblances it is common for both designs to be considered similar:
- The dominant overall constitution and the particular structure of both designs;
- The feature (characteristic creation, exceptional part for the use of the article, etc.) of the designs;
- A common dominant in both designs;
- In both designs either the difference is not notable and only a slightly different dominance (i.e., the difference is a well-known constitution).
The piracy of registered design, according to the Design Act 2000, is subject to a design invasion. Section 22 of the Design Act 2000 states that any fraudulent or evident copying, without the consent of registered owner or owner, of a design that was already registered, is illicit. The section also prohibits the import of any material or substance that is similar to a previously registered design.
An Infringement is said to be if a person tends to import or to publish design that was already registered for a fraudulent or imitation purpose without the consent of the absolute owner of the design.
The court operates in a mechanism in which the articles are not monitored but the decision is upheld from an average person. The court finds it necessary to distinguish the article without any apparent confusion in the minds of consumers.
According to the Design Act of 2000, under Section 22(2) of the Act, the liabilities of the infringer are referred to. This is the same area where the registered owner of the Design can receive remedies.
Accordingly, in accordance with Section 22(2), the infringing party’s liability is as follows:
- According to Article 22(2)(a) of the Design Act, the person violating the Act shall pay Rs. 25,000/(Rupees 25,000/) for every contravened breach. The total amount is Rs. 50,000 (not above) (Rupees Fifty thousand only). The amount indicated above is for the recovery of the violation.
- In accordance with Section 22(2)(b), a design owner has certain rights, in which he can appeal for damages and hold the offender liable.
Only the use of the contested design was available under Article 22 of the Act. In a separate reading of Section 22 (1) to (3) of the Act, the infringement proceeding against a design registered shall be directed against any person incorporating a registered owner. Thus, a registered design owner may lodge an infringement lawsuit against a registered design owner pursuant to Article 22 of the Act. The reason for forcing the violators to be liable for the loss suffered by the registered owner.It is also the responsibility of the registered owner to mark all articles under registered design to take the necessary steps in the further infringement process.
The scope of civil remedies available for the registered work of the proprietor is provided in Section 55 of the Copyright Act of 1957. It helps to seek remedies, claim damages or sue anyone who violates the registered article of the Act for an injunction.
- The applicant is also entitled to receive incomplete design together with the profits gained by the infringer.
- The person in charge of design can discontinue imports of products and confiscate any product which has the power to infringe the rights of the registered person in accordance with the remedies provided in accordance with Section53 of the Copyright Act of 1957.
- Section 63 of the Copyright Act of 1957 provides criminal remedies. It may be used to punish the applicant with imprisonment for a minimum of six months, extended to a period of three years, if his/her work is in violation of due intent. (alongside the fine from INR 50 thousand to INR 2.00 thousand)
- The penalties of second and subsequent crimes under Article 63a of the Copyright Act of 1957 shall apply whereby the registered proprietor may make use of criminal remedies. This punishment holds the offender guilty of being jailed for at least one year, with an additional fine of 1,00,000 INR, to 2,00,000 INR, extended to three years.
Who could claim the infringement remedy for design?
The scope of civil remedies available for the registered work of the proprietor is provided in Section 55 of the Copyright Act of 1957. It helps to seek remedies, claim damages or sue anyone who violates the registered article of the Act for an injunction. The applicant is also entitled to receive incomplete design together with the profits gained by the infringer. Any of the following may be remedies under design infringement by registered design owners, legal heirs, or joint owners.
Contributed by:– Nidhi Jha, Legal intern at LLL