Disclaimer:
the information provided below is general information and may
not be treated as perfect and accurate and or legal advice.
The advice may be differing from one case to another.
'Design'
means only the features of shape, configuration, pattern or ornament
or composition of lines or colour or combination thereof applied to
any article whether 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 or construction or any thing which is in substance a
mere mechanical device, and does not include any trade mark, as define
in of Section 2 of the Trade Marks Act, 1999, property mark or artistic
works as defined under Section 2(c) of the Copyright Act, 1957.
Under
the Designs Act, 2000 the "article" means any article
of manufacture and any substance, artificial, or partly artificial
and partly natural; and includes any part of an article capable
of being made and sold separately;
Object
of the Designs Act to protect new or original designs so created
to be applied or applicable to particular article to be manufactured
by Industrial Process or means. Sometimes purchase of articles
for use is influenced not only by their practical efficiency
but also by their appearance. The important purpose of design
Registration is to see that the artisan, creator, originator
of a design having visual look is not deprived of his bonafide
reward by others applying it to their goods.
The
essential requirements for the registration of 'design'.
The
following are the essential requirements for registration of
an article under the Design Act, 2000
The design should be new or original, not previously published
or used in any country before the date of application
for registration. The novelty may reside in the application
of a known shape or pattern to new subject matter.
The design should relate to features of shape, configuration,
pattern or ornamentation applied or applicable to an article.
Thus, designs of industrial plans, layouts and installations
are not registrable under the Act.
The
design should be applied or applicable to any article
by any industrial process. Normally, designs of artistic
nature like painting, sculptures, which are not produced
in bulk by any industrial process, are excluded from registration
under the Act.
The
features of the design in the finished article should
appeal to and are judged solely by the eye. This implies
that the design must appear and should be visible on the
finished article, for which it is meant.
It
is also notable that if a design:-
Is
not new or original; or
Has been disclosed to the public any where in India or
in any other country by publication in tangible form or
by use in any other way prior to the filing date, or where
applicable, the priority date of the application for registration;
or
Is not significantly distinguishable from known designs
or combination of known designs; or
Comprise or contains scandalous or obscene matter,
Include
any Trade Mark or property mark or artistic works as define
under the Copyright Act, 1957.
Shall
not he registered under the Design Act, 2000.
Priority
Claim
India
is one of the countries party to the Paris Convention so the
provisions for the right of priority are applicable. On the
basis of a regular first application filed in one of the contracting
state, the applicant may within the six months apply for protection
in other contracting states, latter application will be regarded
as if it had been filed on the same day as the first application.
The
classification of goods mentioned in the Third Schedule
In
the third Schedule of Design Rules, 2001 the classification
of goods has been mentioned. The classification is based on
Locarno Agreement. Only one class number is to be mentioned
in one particular application. It is mandatory under the Rules.
This classification has been made on the basis of Articles
on which the design is applied.
The
registration of a design confers upon the registered proprietor
'Copyright' in the design for the period of registration.
'Copyright' means the exclusive right to apply a design to
the article belonging to the class in which it is registered.
The duration of the registration of a design is initially
ten years from the date of registration, but in cases where
claim to priority has been allowed the duration is ten years
from the priority date. This initial period of registration
may be extended by further two periods of 5 years each on
an application made accompanied by a fee to the Controller
before the expiry of the said initial period of Copyright.
Piracy
of a design means the application of a design or its imitation
to any article belonging to class of articles in which the
design has been registered for the purpose of sale or importation
of such articles without the written consent of the registered
proprietor. Publishing such articles or exposing terms for
sale with knowledge of the unauthorized application of the
design to them also involves piracy of the design. If anyone
contravenes the copyright in a design he is liable for every
offence to pay a sum not exceeding Rs. 25,000/- to the registered
proprietor subject to a maximum of Rs. 50,000/- recoverable
as contract debt in respect of any one design. The registered
proprietor may bring a suit for the recovery of the damages
for any such contravention and for injunction against repetition
of the same. Total sum recoverable shall not exceed Rs. 50,000/-as
contract debt as stated in Section. 22(2)(a). The suit for
infringement, recovery of damage etc should not be filed in
any court below the court of District Judge.The registered
proprietor would not be entitled to claim damages from any
infringer unless the registered proprietor establishes that
the registered proprietor took all proper steps to ensure
the marking of the article, or unless the registered proprietor
show that the infringement took place after the person guilty
thereof knew or had received notice of the existence of the
copyright in the design.
The
registration of a design may be cancelled at any time after
the registration of design on a petition for cancellation
to the Controller of Designs on the following grounds:
That
the Design was been previously registered in India as
on date of registration; or
That
it was already published in India or in any other country
prior to the date of registration; or
That
the design is not a new or original Design; or
That
the Design is not registerable under this Act; or
That
it is not a Design as defined under clause (d) of section
2.
It
important for filing the application for registration of design
at the earliest possible because first come first get rule is
applicable for registrability of design. If two or more applications
relating to an identical or a similar design are filed on different
dates only first application will be considered for registration
of design.
