Design Means only the features of shape, pattern or composition of line or color applied to any article in 2D or 3D format by any manual or mechanical process which can be judged by eyes.
It does not include any Trade mark or artistic work (under copyright)
Proprietor of a new or original design Includes –
(1) Author of design
(2) A person who gets the design executed by other person and
(3) A person who acquires design right from an author.
The application for design can be made by any person who claims to be a proprietor of new or original design can be made to the Controller. An application shall be made in a prescribed format and shall be accompanied by four copies of representation of the design and prescribed fee. This application can be sent by hand or by registered post.
An application shall state the class to which such design is to be registered. The Designs Rules, 2001 prescribes classification under which application can be preferred. On application, if any objection appears to Controller, which requires amendment in an application, he may communicate the list of such objections to the applicant. An applicant shall remove/solve the objections within 6 months. Under Sec 6, Design is registered for all or any of the articles comprised in a particular class. Where design is registered for any one article coming under given a single classification, the application for same design but for any other article in the same classification can be granted to the same applicant.
Say ‘Bottle’ and ‘bag’ comes under the same classification and if anyone has obtained design under ‘bottle’ he himself will not be refused from obtaining the same design for ‘bag’. The Controller can either grant or refuse the application. On refusal, the person aggrieved can prefer an appeal to High Court. The Controller shall grant a certificate of registration to the applicant and publish the fact of registration of the design. A register of designs is kept at the Patent Office, in which all particulars of a design shall be entered. Such register is prima facie evidence of any fact regarding design.
Any person who has applied for any design in the UK or any other convention country can claim the same design in India. However, such claim shall be made within 6 months from the date of application in the UK or other convention countries.
Rejection: – The controller shall not register the design if:
• It is not new or original
• It has been published in India or elsewhere in any format before the priority date of application of an applicant
• It is not significantly different from known design or their combination
• It contains scandalous or obscene matter.
Substitution: – Where before registration of design:
• A person has applied for registration of any design, and • Other person claims the same design as his design due to any agreement or assignment then the Controller can proceed to register such design in the name of claimant.
However, the design should be identified to the satisfaction of the Controller and the agreement or assignment shall also be produced under which claim of the claimant has been made.
Restoration: – Where renewal fee is not paid, the right has lapsed which can be restored within 1 year, from the date of expiry of an original period on payment of a fee. Application for restoration, as applied by an applicant, shall be published by Controller.
Marking before Sale:- Where the design of an article is registered, a mark with the word “Registered” or “Regd.” shall be affixed along with registration number on such article before delivery for sale of such article.
Cancellation of Registration:
Any interested person can file a petition to Controller for cancellation of registration of design on following grounds:
• The design is already registered in India by any other person
• It has been published in India or elsewhere before its priority date
• The design is not new or original
• It does not come under the definition of design Petition shall be in duplicate and one copy of it shall be sent to the registered proprietor.
The registered proprietor can file his counter statement within a prescribed time period. The controller shall fix a date for hearing on giving 10 days’ notice and shall decide the matter. Any person aggrieved by the decision of Controller can prefer an appeal to High Court.
Piracy of Registered Design:
Following acts are deemed to be infringement of design, if done without permission of registered proprietor:
• Applying design or its imitation on any article in its sale
• Import any article for the purpose of sale
• Knowingly publishing any article for sale
Any person doing above act in contravention of the Act shall be liable to pay Rs. 25,000 to a proprietor. Further, the proprietor also has right to sue for recovery of damage or injunction in District Court.
1. Every register kept under this Act at Patent Office is open for inspection and any person can take certified copies of any entry in such register upon payment of prescribed fee.
2. Where an application for a design has been refused, then any information, drawing, photo, representation relating to such application shall not be open for inspection.
3. Any person, who is entitled to any design due to any assignment or transmission, can apply to the Controller and the Controller, thereupon, shall register him as proprietor of such design.
4. The Controller shall not disclose any information of a design if it can be prejudicial to the interest of the security of India.