According to the Indian Designs Act, 2000, the term “design” refers to the specific features of an article, whether two or three-dimensional. A design of an article may include its shape, configuration, pattern, ornament, or composition of lines or colours applied to an article. These features may be applied to the article using any industrial process or means, whether manual, mechanical, or chemical.
In our last blog post, we went into detail on the process of applying for and getting a design registered. This time, we are going to look into a few things any Design Applicant needs to know about designs.
Who Can Apply for Registration?
Any person 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, may apply for the registration of the same. An agent appointed for the same may also apply for registration on the behalf of the owner.
What is the Basic Information Required for Filing the Application?
- The name, address and nationality of the Applicant. If the Applicant is not a natural person the legal status and the place of incorporation
- Name of the article to which the design is to be applied.
- A brief statement of the novelty one claims for his design
- Class of the article embodying the design
- Name(s), age and address (es) and nationality (ies) of the Applicant/s whether they are partners or Directors of the firm/company.
- · Name, address, designation and nationality of the person who signs the General Power of Attorney
What Rights Do You Get Once our Your Design is Registered?
As per Section 11 of the Act, a Registered Design is entitled to copyright in design for ten years. This period can be extended to five more years with the prescribed form and payment.
The Design Act should not be confused with the Copyright Act because while there is crossover in the kind of designs and creative works that can be registered under both acts. However, the remedies cannot be sought in both the acts individually.
Can a Registered Design Be Cancelled?
The registration of any design can be cancelled any time after it gets registered by filing a petition for such cancellation in Form 8 along with a fee of Rs. 1,500 to the Controller.
The grounds for such cancellation are as follows:
- The design has been already registered in India previously.
- It has been published in India or somewhere else before the date of registration.
- The design is not original or new.
- It is not registrable under the Act.
What Can You Do If Your Design is Infringed?
If a design has been copied then the owner of that design can claim damages and can also apply for an injunction so that the design cannot be used further.
If there arises any question regarding the ascertainment of infringement then the Court will directly look for the design from the point of view of an average customer. In other words, the Court will consider whether there is any confusion which is obvious or some material facts in the minds of the customers regarding the two articles.
Section 22 of the Designs Act 2000 deals with piracy of registered designs. Any obvious or fraudulent imitation of a design which is already registered without the consent of its proprietor is unlawful. It also prohibits the import of any material which closely resembles a registered design.
This section also provides that in case a civil suit is brought against any piracy of a design, then the compensation shall not exceed rupees 50,000 for the infringement of one registered design. The compensation is statutorily fixed so it serves a good ground for an interim injunction even before the trial commencement.
What Are Some of the Limitations of Design Protection?
One of the reasons why design is so infrequently protected is because in many industries such as jewellery and shoes, the designs change rapidly to keep up with consumer trends. The requirement that prior to registration a design cannot be in public domain thus cannot be met by most of these industries.
Another problem that the design protection regime faces is the term of protection. 15 years is too short a time. A company/individual would rather resort to trademark or copyright protection depending on the article in question, to get a longer term of protection.
Author: Dipanwita Chakraborty, Associate Trainee at PA Legal.
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