Requirements Procedure for obtaining protection under Designs Act
The designs law of 2000 came into force on 11 May 2001, and Indian design registration was subject to the design rules of 2001. The Design Registration shall, in accordance with the Act, protect certain lines, or colors, in relation to form, pattern, design, configuration or composition, of the articles.
As a design registration only tries to protect the visual plea for the design, it does not include any extent or feature of a building mode, a simple mechanical instrument, or any work covered by a copyright law or any trademark contained in the trademark law.
Registration in design in India gives the owner, in addition to all design and copyright rights which may automously exist in design, a monopoly on his product, the right, for a limited duration, to stop others from making, using or selling the product without their permission.
Definitions under Design Act
- Article: In accordance with the Designs Act 2000 the article refers to any manufacturing article and to any substance that may be artificial, or partially artificial, and in part natural.
- Set of Articles: If a group of articles complies with the following requirements, which may be viewed as a set of articles in accordance with the Designs Act, 2000:
- Ordinarily for sale or for joint use.
- Although articles are different, all have common design (same class).
- The same character of a general nature. An item of the same design is not generally regarded as a set of items, and is sold in different sizes. Example of practicality: “Tea set,” “Pen set” etc.
Essential Requirements for registration
The design shall be novel or original, not before the application date, previously published or used in any country. The novelty could be that a known form or pattern is applied to the new subject. For example: When applied to a cigarette holder, the known shape of the “Qutub Minar” can be registered. However, if there is no true mental activity for design in the design for which an application is submitted, registration should not be considered.
The design should concern the form, configuration, pattern or ornamentation features applied or applicable to an article. The concepts, layouts and installations of the industrial plans cannot therefore be registered under the Act.
Any industrial process should apply or apply to any article. Artistic designs such as painting, sculptures and similar objects which are not manufactured by any industrial process are normally excluded from the register in accordance with the Act.
The design features in the finished article should be judged and judged by the eye alone. This implies that the design must appear on the finished article it is meant for, and should be visible. So, no designs in the interior layout of a box, money purse or almirah can be seen for these articles, since they are usually placed on the market in the closed condition.
Any building or operating mode or principle or anything which is merely a mechanical device in substance would not be a registerable design. For example, a key which has novelty in the form of its corrugation only or bending at the part intended for use with levers inside the connected lock cannot be recorded in the form of a design in accordance with the Law. However, if any design suggests any construction mode or principle, or any mechanical or other action of a mechanism, an appropriate disclaimer is required, provided that it contains other registrable characteristics in the design.
No trade mark or mark, or artistic work as defined in the 1957 Copyright Act, should be included in the design.
Place and Duration of registration
The applicant himself or herself or a professional person may file for registration of design ( i.e. patent agent, legal practitioner). However, an agent residing in India has to be employed for applicants who are not residents of India.
The Controller of Designs, the Patent Office in Kolkata or any of its branches in New Delhi, Mumbai and Chennai are to be submitted the following documents by any person registering design.
The design registration period is initially 10 years from the registration date, although in applications where the priority claim is permitted, the term is 10 years from the priority date. This initial period of enrollment may, on request made in Form-3 accompanied by an application fee of Rs. 2,000/- be extended by a further period of 5 years before the expiry of the original copyright period. Even if the design is registered, the design owner may apply for such an extension.
On a request for cancelation in the form 8, at Rs. 1,500/- the design controller, cancel the design registration at any time after design registration for the following reasons: For the following reasons:
- That the design was registered in India or previously;
- It was published before the date of registration in India or elsewhere or
- No new or original design or; Design
- Design cannot be registered or;
- Clause (d) of Section 2 does not include a design.
Piracy of Design and penalty for the same
Piracy in a design means the application of the design or of its replica in any article of a class in which the design has, without the written consent of the registered proprietor, been registered to the sale or importation of such articles. Piracy of design also involves publishing or disclosing articles for sale with knowledge of the unauthorized application of the design.
In the event of a violation of copyright in a design of each infringement, it is liable to pay the registered owner, subject to a maximum of Rs. 50.000/- as a contractual obligation, a sum of no more than Rs. 25,000/- for the design of any particular design. In the case of any such contravention and an order against repeating the same, the registered proprietor can sue for the recovery of the damages. As contract debt referred to in Section 22(2) (a), total amount collectible shall not exceed rs. 50,000. The case of infringement, damage recovery should not be brought before the District Judge Court in any court.
Contributed by:– Nidhi Jha, Legal intern at LLL