By: Shreya Kohli
Visuals tend to be more attractive than plain text. The more creativity in designing a product, the more attention it will grab from the customers. Hence, the company pays a hefty amount to architects and designers for artistically designing the company’s product and also spend a huge amount on the research of the same. An Industrial Design adds commercial value to a product by making it attractive and also increases the marketability of the product.
The Industrial design in India is governed by The Designs Act, 2000 (hereinafter referred to as ‘The Act’). The Act came into force on 11th May 2001.
DEFINITION OF A DESIGN AS PER DESIGNS ACT 2000
SECTION 2(d) Design means features of shape, pattern, configuration, ornament or composition of colours or lines which is applied in three dimensional or two dimensional or in both the forms using any of the processes whether manual, chemical, mechanical, separate or combined which in the finished article appeal to or judged wholly by the eye.
The definition does not include:
- Any mode or principle of construction
- Anything which is a mere mechanical device
- Any trademark
- Any Property mark as defined in section 479 of the Indian Penal Code, 1860.
- Any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957
REGISTERING A DESIGN-ESSENTIAL REQUIREMENTS
Section 4 of the Act Prohibits registration of certain designs in the following cases:
- If the design is not new and Original. Novelty and originality of a design is a must. The Supreme court in the case of Bharat Glass Tube Limited v Gopal Glass Works Limited[i], explains that the expression ‘new and original’ in Section 4 means that the design has not to be published anywhere and have been invented for the first time. Publication before the registration defects the proprietor’s right to protection under The Act.[ii]
- If it is not disclosed to the general public. In the case of National Trading Co. V Monica Chawla[iii], the court observed, that disclosure of a design to an individual who is not under the obligation to keep it a secret would constitutes ‘Publication’ under the clause.
- If it is not significantly distinguishable from other known designs. Small or superficial variations will not make the product significantly distinguishable. Whether a product is significantly distinguishable or not, is to be decided on a case to case basis.
- If it contains some obscene or scandalous matter
- If it is not contrary to public order or morality. (Section 35)
REGISTERING A DESIGN-PROCEDURE
- As per, Section 5 of the Act, an application for the registration of designs is made to the controller of Designs. The Application can be made by the Proprietor, provided it is not previously published and is new and is not opposed to public morality.
As per Section 2(j), a proprietor is any person who:
- is the author of that design
- has purchased such design for a valid consideration and
- to whom the design has been transferred from the original proprietor.
- The application is to be made in the patent office in a prescribed manner and shall be accompanied by the prescribed fee. [Section 5(2)]
- For registration of designs, articles are classified into 31 classes and a miscellaneous Class 99 as described in the Third Schedule of the Design Rules, 2001. The applicant has to identify one class under which his design is to be registered. In case of a doubt as to the class of the design, the controller may decide the question. [Section 5(3)]
- The Examiner will then conduct a novelty search in the available databases. If it is found that the design is not new or is not original, the examiner mentions the same and submits his report to the Controller.
- The Controller is to consider the report of the Examiner and if satisfied, will issue the registration certificate at the earliest. In a case, where the Controller is not satisfied, a Statement of objections must be communicated to the applicant highlighting the reasons for such objection.
- If the applicant fails to comply with the objections or fails to apply for an appeal within three months from the date of communication, the application shall be deemed to be withdrawn.
- Once satisfied, the Controller shall grant a certificate of registration to the proprietor when the design is registered. The date of application for registration is the date of registration of a design.[iv] The duration for registration of a design is 15 years in India.
RECTIFICATION OF A DESIGN
The provisions related to the Rectification of design are provided in Section 31 of the Act and Rules 39 and 40 of the Design Rules, 2001. The application for rectification of a design is made to the Controller by the party aggrieved on the following grounds:
- Non-insertion or omission of any entry
- An entry made in the register without any sufficient cause
- Entry wrongly remained on the register
- Any error or defect in any entry in the register
The controller on receiving such application may make such order for making; expunging or varying such entry as he thinks fit and rectify the register accordingly.[v]
RENEWAL OF DESIGN
As per Section 11(1), the registered proprietor of the design shall have the copyright of the design registered for ten years from the date of registration.
Under Section 11 (2) of the Design Act, 2000, the provisions related to Renewal or extension of Copyright of Design are provided. The Renewal of a copyright of a registered The Renewal can only be done after the expiration of the original period of 10 years of the Registration of Design and only up to a further span of 5 years. The Controller does the Renewal of Design after the registered proprietor fulfils all the requirements.
Design Act, 2000 is the reason for the smooth functioning of an Industry. Its main objective is to protect any new or original design created by a person that applies to a particular article that is to be manufactured by an industrial means or process. It also protects the designs of a proprietor from being infringed by another proprietor and to avoid such infringement, it provides for the renewal and restoration of designs in India.
- Law relating to Intellectual Property Rights, V K Ahuja
[i] 2008 (37) PTC 1 (SC)
[ii] Niki Tasha P. Ltd v Faridabad Gas Gadgets P. Ltd, AIR 1985 Del. 136
[iii] AIR 1994 Del 309
[iv] Section 5, id
[v] Section 31, id