What is a Design?
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.
Designs are applicable to practically every physical object we use. Phones, toys, and cars all have Design elements associated with them. Notably, the terms used to refer to this particular type of IP is different all over the world. For example, the USA calls them Design Patents and the EU calls them Community Designs.
What is the Need to Protect Designs?
The point of design protection is to reward and encourage original product designs by protecting the creativity and labour of product designers. The proprietor of a registered design is conferred with exclusive rights to apply a design to the article in the class in which the design copyright has been registered. This means that once you’ve registered your design you are entitled to the protection of your intellectual property, and therefore, if anyone else infringes on your right you can take legal action against them. You will also have the right to license or sell your design as legal property for consideration or royalty. But in 2022 also, people tend to ignore the importance of registration of intellectual properties as it is not compulsory in India to register them. Mostly, small and medium business enterprises are unaware of how they can gain more commercial value for their product and promote their brand by registering their Industrial Designs
What Are the Essential Requirements for Design Registration in India?
For the design to be registered and protected under the Design Act, 2000, it needs to fulfill the following essential elements.
Novelty means newness. If a product’s design has a novelty aspect then only it can be registered. A combination of registered designs can also be considered, only if that combination produces new visuals.
No prior publication of design and the design must be unique
The design should be unique and should not be disclosed to the public anywhere in India or somewhere else in the world by way of use or prior publication or in any other way.
Making application of design to an article
The design should be applied to the article itself. Without an article, registration of a design is not possible.
Design should not be contrary to public order, morality, or security of India
The design should not be prohibited by the Government or any authorized institution. It must be capable of registration under section 5 of the Design Act, 2000. A design that is against public morality or the sentiments of people may not be allowed to get registered.
Steps to Register a Design in India
- Prior art work: The applicant will conduct a search and find out whether any similar design has been previously registered or not. There are various databases paid as well as unpaid to help the applicant for search such as–IP India’s online public design search platform.
- Classification: Based on the function of the design and the Locarno classification the applicant needs to find the Class to which the design belongs. If unable to do so, the Controller will decide and his decision is final. A representation/diagram should be prepared on white A4 size white paper and must indicate the details of the design and applicant. If the applicant does not prepare it in A4 size then the portal won’t accept it and can delay the application. The applicant’s details would be the name, address, and name of the article on which the design has been applied. If the applicant is a foreigner, then he/she shall require to give an address for services in India.
- Absolute Novelty clause and Disclaimer: A novelty clause allows the article to be judged for novelty based on prior publication in India or anywhere else in the world. In case the ornamental pattern of the article is likely to be confused with a trademark, suggests any mechanical action, or contains words, letters, numerals, etc., a disclaimer should also be included.
- Priority date: If the application is made in conventional countries or countries which are members of the intergovernmental organizations, then, in that case, the applicant can claim a priority date in India. This shall be the date of applying in any such country (provided application must be made within 6 months in India.)
- Application: Application duly filled in on the prescribed form (Form-1) along with the prescribed fees, stating name & full address, nationality, name of the article, class number, and address for service in India is required to be submitted. The application is required to be signed either by the applicant or by his authorized agent. Representation of the article in quadruplicate, stating the view e.g. front view, etc. is required to be submitted with the prescribed application.
Then a substantive examination is conducted by the examination officer and the report is presented within 2 months. Controller Designs Patent Office will check the design application and in countries with no Design office, the Patent Office will check the application.
- Examination of application and Objections: After the application has been filed, it is examined by the Controller of Designs. The Design Office conducts a formal evaluation, as well as a detailed evaluation of the application. At the formal evaluation, the formal compliances are checked, i.e., whether the article falls in the claimed class or not, whether the applicant’s identification and particulars are correct or not, or any column which ought to have been filled while applying has been left out or not.
- Reply to Examination Report: If an applicant receives any formal objections, then the applicant is allowed to amend those objections by filing a written response. If the examination officer is not satisfied with the written reply, then an opportunity for a hearing will be given. If the applicant still fails, the design is declared non-registrable. All this is done within 6 months from the date of filing.
- Registration and publication: Once the design is accepted, it is published in the Official Gazette, so that the public becomes aware that an industrial design has been registered. Registration initially confers a right for ten years from the date of application. It is renewable for a further period of five years. If the extension fee is not paid for the further period of registration within the period of initial registration, this right will cease.
Author: Dipanwita Chakraborty, Associate Trainee at PA Legal.
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