Design

The object of the Design Act 2000 is to grant effective legal system for the protection of Industrial Designs and to promote design activity by promoting design element in an article of production. The Act is also intended to ensure that the law does not unnecessarily extend the protection beyond what is necessary to create the required incentive for design activity while removing the impediments to the free use of the available designs. Accordingly the Act incorporates, inter alia the following:

1. It enlarges the scope and definition of ‘Article’ and ‘Design’ and introduces the definition of “Original”;
2. Amplifies the scope of “Prior Publication”;
3. Contains the provisions for identification of Non-Registrable Designs;
4. Introduces internationally followed system of classification;
5. Provision for maintaining the register of Design on Computer;
6. Provision for the restoration of lapsed design;
7. Provision for appeal against the order of the Controller before the High Court;
8. Revokes the period of secrecy of two years for registered design;
9. Provides for compulsory registration of any document for transfer of right in the registered design;
10. Introduces additional grounds in cancellation proceedings and makes provisions for cancellation proceedings before the Controller instead of High Court;
11. Enhances quantum of penalty for infringement of registered design;
12. Enhances the period of registration from initial five years to ten years and a further extension of five year. Thus effectively enhancing the period to fifteen years;
13. Provisions for allowing the priority to other convention countries belonging to the group of countries or inter-governmental organizations apart from United Kingdom and other Commonwealth Countries.

Design has been defined under Section 2 (d) of the Act. According to Section 2 (d) of the Design Act a Design  means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 or property mark as defined in section 479 of the Indian Penal Code or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957

Under the Design Act only Original designs are to be registered. Original Design has been defined under Section 2 (g) of the Design Act and in relation to design means originating from the author of such design and includes the cases which though old in themselves yet are new in their application. This a design which may have been developed prior but has not been used and has also not come in public domain can qualify as original.

Design can be filed by the Proprietor of a Design. A “Proprietor of a new or original design would mean (i) where the author of the design, for good consideration, executes the work for some other person, means the person for whom the design is so executed; (ii) where any person acquires the design or the right to apply the design to any article, either exclusively of any other person or otherwise, means, in the respect and to the extent in and to which the design or right has been so acquired, the person by whom the design or right is so acquired; and (iii) in any other case, means the author of the design; and where the property in or the right to apply, the design has devolved from the original proprietor upon any other person, includes that other person.

The Act provides for Original Design to be registered. Apart from that the following Design does not qualify to be registered in India:

1. is not new or original; or
2. has been disclosed to the public anywhere in India or in any other country by publication in tangible form or by use or in any other way prior to the filing date, or where applicable, the priority date of the application for registration; or
3. is not significantly distinguishable from known designs or combination of known designs; or
4. comprises or contains scandalous or obscene matter shall not be registered.

An application for registration of a Design can be made by any person in the prescribed format claiming to be the proprietor of any new or original design not previously published in any country and which is not contrary to public order or morality, register the design under this Act.

The Controller shall before such registration refer the application for examination, by an examiner appointed under the Act as to whether such design is capable of being registered under this Act and the rules made thereunder and consider the report of the examiner on such reference.

We at Infini Juridique are well versed with the complexities of the registration of Design in India and its various stages and process of registration. Our Patent & Design Attorneys shall not only provide you their expert opinion on whether the Design is capable of registration but will also help and assist you in filing the design application and prosecuting the same as well as provide all legal assistance in filing an infringement action against any design violation.