A design means features such as shape, configuration, pattern, ornamentation or composition of lines or colour applied to any object, either in two or three dimensions form, or both. This may be brought about by any means or process, whether mechanical, chemical or manual, which in the finished object appeals to and is judged solely by the eye, without the aid of any other mechanical device. The design does not include any mode or principle of construction, which is merely an automatic device. It also does not include any Trademark or any artistic work.
The Design Act, 2000 governs industrial design in India. The new Act is an amendment to the previous design act, which takes into account the tremendous developments that have occurred in the fields of science and technology. It also provides more specific protection to designs than before.
A design registration gives the registered proprietor the exclusive right to apply a design to an object in the class in which the article has been registered. The registered proprietor also avails better protection for his intellectual property through registration. He can license or sell his design as legal property instead of royalty or consideration. In case of infringement of intellectual property, the registered proprietor can sue any person who breaches his exclusive right. For design registration, specific essential qualifications are required to be fulfilled. These include:
- The design must be new or original
- The design should not have been disclosed to the public anywhere by publication in tangible form or by use or any other means before the registration of the design
- The design should be remarkably different from any previously known design or a combination of known designs
- It should not contain scandalous or obscene matter or be contrary to public order or morality
- It should not be a mere mechanical contraption
Designs that are literary or artistic do not receive protection under the Design Act. These include book jackets, calendars, greeting cards, leaflets, stamps, etc.; mere mechanical contrivances; buildings and structures; parts of articles not manufactured and sold separately; flags, emblems or signs of any country; layout design of integrated circuits. Artistic works defined under Section 2 (c) of the Copyright Act, 1957 do not get the benefit of registration. Artistic works under the Section means:
- Painting, sculpture, drawing (including a diagram, map, chart or plan), engraving, photograph, whether or not such work possesses an artistic quality
- A work of architecture and
- Any other work of artistic craftsmanship
Any person or the legal representative or assignee can apply jointly or separately for design registration. The term “person” under the Act includes firms, partnerships and corporations.
An application Design registration can be filed any of the patent offices located in Delhi, Mumbai, Chennai or Kolkata. Here one must note that the Design wing located at the patent office at Kolkata is the head office for handling all such applications and other three patent offices transfer all such applications to Kolkata for further processing.
The patent office issues an examination report after an application is made. A response to the objections raised in the examination report must be filed within six months from the date of filing of the design application. The controller may accept or reject the response. In the latter case, there is a provision for amending the form or submitting further replies.
Once the objections are addressed, the application is accepted, and a certificate of registration is issued. This registration is valid for 10 years and can be further renewed for another five years.
ALSO READ: Trademark Registration Process In India
A fee of Rs 1000 for design registration and Rs 2000 is charged for the renewal of registration. It takes 3-6 months for a design to be registered. It is only after the registration of the design that it is published in the Journal. This journal is open for public inspection on payment of a fee after a request has been made. Any interested person can file a petition to the Controller seeking the cancellation of a registered design. A design can be cancelled on the following grounds:
- If the design is previously registered in India
- If it has been published in India or any other country before the date of registration
- If the design is not new or original
- If the design is not registered under the Design Act, 2000
- It is not a design as defined under Section 2(d)
Design registration in India offers protection against infringement to the proprietor of the design. Any person who infringed upon the intellectual property of the proprietor shall be liable to pay a sum of not exceeding Rs 25,000 recoverable as a contract debt, provided the total sum recoverable for anyone design shall not exceed the sum of Rs 50,000.
The above discussion makes it quite clear that the design registration is granted to prevent others from making a wrongful gain at the expense of the owner of the design.
LetsComply can assist you in getting your design registration done online in India. To know more, call us at +91-9717070500 or send us an email at firstname.lastname@example.org.