Subject Matter of Protection under Designs Act
Nature and scope of Industrial Design
Of course, the full spectrum and domains of human activities are covered by design skills and procedures. Therefore, their roots are profoundly ingrained in the evolutionary patterns, values, perceptions, viewpoints and goals of a certain society, cultural, economic, political and legislative convictions. They represent in this manner an intimate blend of public actions and the purpose of society.As a result, designs are developed in ways that are appropriate to the needs, aspirations and expectations of end users.
Design denotes a thought, suggestion or idea of a shape, image or gadget or arrangement that can be applied with certain manual, mechanical or chemical techniques to an article. It is a proposal for shape or adornment to apply to a physical body. It is a notion, a proposal or an idea, and not a piece that may be recorded. The design is not the article, but rather the notion, proposal or idea of a form, image, apparatus, or arrangement to be used for the article.
Rights conferred: In promoting and protecting the design element in industrial production, the rights granted to the proprietor of a valid registered industrial design underline once again the fundamental goal of design legislation. The legislation on industrial design therefore grants the proprietor the exclusive right, in industrial items, to prevent an unlawful use of the design.
The inventor (or author or originator) of industrial designs is entitled to legal protection with respect to industrial design. The operation of this principle raises two issues and is typically subject to specific legislative measures. Firstly, the right is in respect of an industrial design established by an employee or the contractor in accordance with a commission to enjoy legal protection. In such cases, it is normally provided by the law that the employer or the person who commissioned the design is entitled to the legal protection of the design.The basis of this rule is that design creates within the functions to the employee so that the salary, responsibility and other conditions of work for the employee’s creative activities should be rewarded. Similarly, in the event of the contractor, the production of the design for the use of the person commissioning the design shall be the responsibility of that contractor.
The right to prevent others from taking advantage of an industrial design usually includes the exclusive right to do any of the following for commercial or industrial purposes:
- produce items that the design is applied to or that are incorporated within it;
- import products to which or in which the design is applied;
- selling, hiring or offering such items for sale.
In certain laws, the proprietor’s exclusive rights further extend to restrict others from stocking any items to which its design has been applied or incorporated. Although this right is sometimes considered excessive by dealing only with preparedness, on the other hand it is often included in order to enforce ownership rights, as a stock of infringing articles can often easier be located than to understand someone selling or offering for sale such goods. This rights is often considered excessive.
Subject Matter under Design Act
A design which is registered shall define the subject of an industrial design.
An article differs not only from its usefulness, but also its visual attractiveness, which also often plays an essential role in molding the buyer’s preferences for this product. Consequently, it is crucial for the business to create and even design of an object and its packaging. The design act 2000 is intended for visual attraction.In order to receive protection under the industrial design law, industrial design must be registered. It must meet the requirements needed for design registration for the purpose of registration. The design registration shall be based on the subject matter suitable for registration. Incorporated design is not an abstract idea that can be registered but it is a material or a pattern drawn from a paper which is applied to an object that is made by industrial process and appeals to a person’s eyes for design and not for its use for any purpose.
- Article: A design that applies to an article is something. Unable to register design, a sheet of paper on which a pattern is created. But it cannot be a design for the article itself. The form of an article is recorded here, and only a convenient depiction of the shape of an article is the drawing made on paper.
- Article application or embodiment: Although design protection is a fundamentally abstract idea, the stimulation of the design element of production is one of the fundamental aims of industrial design protection. Therefore a design can only be protected if the design can be employed in the industry or in respect of items made to a big scale is a common characteristic of industrial design legislation.
- Non-functional design: The concern for industrial design protection with appearance alone appears also evident from the restriction that designs which are simply dictated by the function to be performed by the Article are excluded from protection, which is typically included in industrial design statutes.
- Originality: The originality requirement is not directly specified in the Indian Design Act but, in the lack of evidence to the contrary, the IDA argues that the certificates of registration are adequate evidence that the design is original. The applicant must state that, to the knowledge of the applicant, any other person than the applicant was unable to use the design at the time the applicant accepted the design.
- Novelty: All industrial design rules demand that only new or, as is commonly described, original designs should be granted registration protection. The novelty of the design is the basic reason why the inventor is rewarded by the protection of the industrial design registration. Although the novelty need can be found in all laws, the nature of the uniqueness needed as a prerequisite for protection is different from the laws of different countries. The necessary innovations are often absolute or universal, meaning, as opposed to all other designs produced in all other regions of the world that the design for which registration is sought must be new and divulged by all possible tangible or oral means. On the other hand, it sometimes requires a qualified standard of innovation. In this latter circumstance, the qualification can be time-based, which means that novelty is assessed on the basis of designs published within a period of time.
- Prior publication not allowed: For new or original design and not previously published in any jurisdiction, an application should be made for design registration. Therefore, it is necessary that the design not be publicized in India before the date of application for registration.
Industrial design is not an abstract idea, but rather it is a pattern or shape sketched on paper that will be used to make an article which gives it a distinctive feature that attracts a person’s eye to its appearance and not to its utility. Industrial design should be registered to ensure that protection is properly applied in accordance with industrial design law both in India and other countries (member countries of the industrial property protection treaty in Paris).
Contributed by:– Nidhi Jha, Legal intern at LLL