2. INTRODUCTION An industrial design is one of the categories of IPR where the design system focuses on the aesthetic feature of an article derived from its visual appearance. Relevant aspects are the shape, configuration, surface pattern, the color or line or a combination thereof as applied to an article which produces an aesthetic impression on the sense of sight.
3. IMPORTANCE OF INDUSTRIAL DESIGN It makes a product attractive & appealing to customer & may even be its unique selling point. An industrial design adds value to a product. Fair return on investment. Business assets.
4. DESIGN ACT 2000 The Design Act 2000, came into force on 11-05-2001after repealing the Act of 1911. It aims at protecting the design in India and bringing the Indian law at par with International law. Applied to any article of manufacture in two dimension or three dimension or in both form.
5. WHY REGISTRATION OF DESIGN IS REQUIRED? To protect any new / original shape, configuration, surface pattern ,combination of lines or colors applied to any article which is a creation of human intellect by way of registration. To prevent the imitation of innovator’s design. To prevent the commercial exploitation of the innovator’s design by the third party without the proprietor's consent. To obtain bonafide reward by commercially exploiting the design as well as assigning the same to other parties. To increase interest in innovating more designs in the field of consumer products.
6. What can be registered as a design ? New or original (Novel). Not previously published. Reproducible by industrial means. Not contrary to public order or morality. Not comprised of or containing scandalous or obscene matter. Significantly distinguishable from known designs or combination of known designs. Appealing to the eye.
7. THE FOLLOWING ARTICLES ARE NOT REGISTRABLE Labels, tokens, cards, stamps Texts, religious symbols Mere mechanical contrivance Building and construction or real estate Basic shape, variations commonly used in the trade Mere workshop alteration Mere change in size Flags, emblems or signs of any country, computer icons.
8. FILING OF DESIGN APPLICATION WHO CAN APPLY FOR REGISTRATION OF DESIGN? Any person [individual or legal entity] Legal representative of deceased person Person (individual or legal entity) claiming to be the proprietor.
9. PARTICULARS REQUIRED FOR FILING APPLICATION (i) Application Form 1 with requisite fee of Rs. 1,000/-, should contain full name, nationality, address, class no, articles name and address for service in India. (ii) Four sets of Representation sheets in durable paper of A4 size, pasted with the photographs/drawings of the article from different angles. (iii) Power of attorney. (iv) Priority document (for convention application).
10. Jurisdiction of Filing Application Applications with prescribed fees may be filed in the Head Office at Kolkata and its Branch Offices at Delhi, Mumbai & Chennai.
11. REGISTRATION OF DESIGN [U/S-5] The Controller may, on the application of 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, register the design under this Act. A design may be registered in not more than one class. A design when registered shall be registered as of the date of the application for registration.
12. SCOPE OF RIGHTS The right to prevent unauthorized copying or imitation by third parties. Legally exclude all others making, offering, importing, exporting or selling product with a specific design. However an infringement can be legally combated only if the owner has recorded his design(s) and received a formal certificate of protection.
13. Term of Design Registration When a design is registered the registered proprietor of the design shall, subject to the provision of the act, have a copyright in the design during ten years from the date of registration, extendible for another five years.
14. CLASSIFICATION OF DESIGNS Locarno Classification of goods The Locarno Classification is based on a multilateral treaty administered by WIPO. It comprises a list of 32 classes and 219 subclasses with explanatory notes and an alphabetical list of goods in which industrial designs are incorporated, with an indication of the classes and subclasses into which they fall. This list contains some 7,024 indications of different kinds of goods. CLASS-03 TRAVEL GOODS & PERSONAL BELONGINGS Sub Class 03-01: Trunks, Suitcases, Briefcases.. Sub Class 03-03: Sunshades ,Walking Sticks .. Sub Class 03-04: Fans
15. REVOCATION OF DESIGN Sec-19 A petition in Form-8 with fee of Rs. 1,500/- by an interested person may file for revocation/cancellation of registration at any time after the registration on the following grounds to the Controller: a. Previously registered in India b. Published in India or other countries prior to the date of registration c. Not a new or original Design d. Not a Registrable Design under this Act e. Not a Design under Section 2(d) of this Act. Sec-46 The Controller shall take any action regarding the cancellation of registration of designs registered under the Designs Act which the Central Government may, by notification in the Official Gazette, specify in the interest of the security of India.
16. PROCEDURE For revocation[rule-29] A petition to the Controller Counter statement [one month not exceeding three months] Evidences by way of affidavits Hearing Decision.
17. AN APPEAL Controller’s orders appealable before High Court [concerned jurisdiction]. Controller may refer such petition at any time to High Court. High Court shall decide any petition so referred.
18. CASE LAWS Dabur India Vs Amit Jain 2009 (39) PTC 104 (Del) For determining whether two designs are identical or not , it is not necessary that the two designs should be exactly same. The main consideration is whether the broad features of shape, configuration, pattern are same or nearly the same and if so , then it will be a case of imitation of the design by the other. Based on these principles, the DB allowed the appeal and awarded cost of 20, 000 to the plaintiff.
19. With regard to Section 19 (b): Gopal Glass Works Ltd Vs. Controller of Patents & Designs, 17 August 2005 [2006 (33) PTC 434] Held that: Had publication of design specifications by a registering authority, particularly a registering authority in a foreign country, in connection with registration of a design, in itself, amounted to prior publication, that would hit all future applications in India for registration of designs, prior registration in India would not separately have been made a ground for cancellation of a registered design.
