Design Applications in India
DESIGN APPLICATIONS IN INDIA
WHAT IS DESIGN-
Design is another branch of Intellectual Property. Wherein rights are granted to new and distinct features of shape and configuration, ornamentation, pattern or combination of lines or colours applied to an article as described under section 2(d) of the Indian Designs Act, 2000, subject to the parameters laid down under the section. For the purpose of understanding, a Design can be described as the outward appearance or the shape of an article that is visible to the naked eye. It is pertinent to mention here that contrary to the right granted under Patents Act, 1970, the rights under Design Act can only be granted to the aesthetic appearance of an article judged solely by the eye and cannot extend to protect its functionality. The article on which design is ascribed should have an independent existence. The design to be registered should form an integral part of the article and it should be capable of being made and sold separately. For example- the designs of architecture or paintings may not be granted protection, since these cannot be produced on an industrial scale. However, a unique design for a bottle, cup handle or for a door can be protected as industrial designs.
BENEFITS OF APPLYING FOR PROTECTION OF DESIGN UNDER DESIGN ACT-
Similar to protection under Trademarks Act, 1999 and Patents Act, 1970 protection under Design Act, 2000 gives its proprietor an exclusive right to use the design and exclude others from using, manufacturing or selling, importing and/or distributing the design for which protection is sought. The statutory right accrues only after securing the registration. It further gives the registered owner a right to file a suit for infringement in case of infringement and license to generate further revenue. The rights granted are protected for a period of 10 years which can further be renewed upto 5 more years.
SUBSTANTIVE REQUIREMENTS BEFORE FILING APPLICATION UNDER DESIGN ACT, 2000-
The substantive requirements for design to be registered include the following:
- A new and original design.
- Design must not be published or available in Public in India or abroad.
- The article should be capable of being manufactured and sold separately.
- The design must not be to the effect that it involves any mode or principle of construction which is a mere mechanical process.
- The design must have aesthetic appeal when judged solely by the eye.
- The design must be capable of being used for commercial purposes.
- Design should not be against the morality and public order of the country. It should
not contain any scandalous or obscene matter.
- It should not contain any property mark as defined under IPC, any trademark as defined under Trade and Merchandise Marks Act, 1958 or any artistic work as defined under Indian Copyright Act, 1957.
PROCEDURAL REQUIREMENTS FOR DESIGN REGISTRATION:
- A duly executed Power of Attorney.
- Name of the applicant, Address and Citizenship
- Name of the article to which design is ascribed
- Purpose of the article
- Clear images/drawing of design in high resolution from different views such as perspective view, front view, rear view, top view, bottom, right side view and left side view
- Statement to claim novelty
- Priority details, if priority is claimed along with the Priority Document.
- Assignment, if applicable
THE APPLICABLE GOVERNMENT FEE FOR INITIATING A DESIGN FILING IN
- Rs 1000/- Natural person.
- Rs 2000/- Small entity.
- Rs 4000/- other than Natural person.
PROCESS OF REGISTRATION:
- Preparing a representation of the design- An exact representation of the article on which the design has been applied is to be prepared through various drawings/images with different views including perspective view, top view, bottom view, left view, right view etc. It should be prepared on white A4 size paper of durable quality.
- Identifying the class of design: Basing upon the purpose and function of article an internationally accepted classification and sub classification should be included.
- Preparing a statement of novelty: A statement of novelty should be prepared and included at the bottom of representation of a design, in order to specify the claim.
- Include a Disclaimer: If the ornamental pattern on an article is likely to be confused with a trademark, suggests any mechanical action or contains words, letters, numerals, etc., a disclaimer should be included in the representation.
- Priority Date: If an application or registration is already made in convention countries or countries, a claim in the registration of the design can be made by citing a priority date. Provided the application is filed within 6 months from the date of priority.
- First Examination Report: After filing the application, the Design Office examines the application for preliminary objection and issues a report if any additional information and/or clarification is needed.
- Registration and Publication: If any other objection is raised by the examiner a hearing may be called, however if no objection is pending the design is registered for a period of 10 years and published within one month of registration.
- Extension of period of Copyright: The period of 10 years can further be extended to 5 years by filing for extension of period of Copyright.
Flow Chart of Design Application up to Acceptance