Registration and protection of designs in India are regulated by the Designs Act, 2000 and the Design Rules that were enacted in 2001. The introduction of the Design Act, 2000, repealed and replaced the Act that was introduced in 1911.
The Design Rules, 2001, was further amended by Designs (Amendment) Rules 2008 and Designs (Amendment) Rules 2014. The latest development in the rules established under this Act is the introduction of a new category of an applicant that is incorporated under the identity of a small entity in addition to a natural person.
Definition of a Design
A design is defined under Section 2(d) of the Designs Act 2001, as only the features of a shape, pattern, configuration, composition or ornament of lines or colours that are applied to any article that is two dimensional, three dimensional, or both by an industrial process or any means whether mechanical, manual or chemical, separated or combined, which in the finished article are judged solely by the eye; but is not taken into account upon the principle of construction or anything which is in substance a mere mechanical device.
Essentials for Design Registration
Under the Design Act, 2000 for a design to be registered and protected under the Act, the following are essential elements that need to be fulfilled:
- Original and new design. This means that it should not have been used or published previously in any country before the date of application of registration.
- The crux of the design is the features that are represented by shapes, patterns, configuration, composition or ornamentation that are applied or that apply to an article.
- The design should only be appreciated with the eyes. The method or process of creation and application is irrelevant.
- It should not include artistic works, trademarks or property marks.
- Significant differences must exist between your design and other designs that have already been registered. Similar designs or designs with a likeness to already existing designs even if slightly different do not qualify to be registered.
Process for Design Registration
The first thing to be noted is that the application to register a design may be applied to five different authorities:
– Controller Designs Patent Office in Kolkata
– Patent office in Delhi
– Patent office in Ahmedabad
– Patent office in Mumbai
– Patent office in Chennai
When an application is submitted at any one of the four offices in Delhi, Mumbai, Chennai and Ahmedabad and are rerouted to the head office in Kolkata,
the following is the application procedure for filing for a design registration:
- The application must be filed with Form-1 along with the following details:- Name of applicant. – Address of the applicant. – Nationality of the applicant. – In the case where the applicant is not a natural person, i.e. a company, etc. you must include information regarding the place of incorporation and the legal status of the entity. – The required fee applicable.
- The class and the sub-class of the article under the Locarno Classification, of the article embodying the design.
- The name of the article to which the design is applied upon.
- Representation of the design. In the case where the design is two dimensional, two copies of the design are to be submitted. In the case where the design is three dimensional, two copies of the design from the viewpoint of the front, back, top, bottom, and the two sides must be submitted. Further, the applicant must also highlight the unique features of the design that sets it apart from any other existing designs.
- If the application is to register the design in more than one class, each class of registration must have a separate application.
- Statement of disclaimer or novelty must be attached to each representation with respect to mechanical processes, trademark, numbers, letters etc. it should also be endorsed and duly signed and dated on each representation by the applicant or the authorised person on behalf of the applicant.
- After submission of the application, the patent office will examine the application and raise objections, if any. Upon the clearance or removal of all objections, the design shall be granted a copyright certificate by the patent office.
- The registration of the design is valid for ten years from the date of registration.
- The period of registration may be extended by another 5 years before the expiry of the first ten year period by submitting an application through Form-3 and paying a fee of Rs 2000.
Categories of an Applicant
As of 2014, the Design (Amendment) Rules, 2014 introduced two categories of applicants: – Natural person – Other than a natural person The importance of this classification of applicants is the different fee structures that are imposed upon the applicant depending upon the category that they fall under.
Under the category of ‘Other than a natural person’, there are two sub-categories:
- Small entity
- Others except for a small entity
The advantage received by small entities is a reduction in the fee that needs to be paid when applying to register a design. The advantage of registering a design is that the holder of the registration certificate has the legal right to stop anyone else from using the design without his permission.
In the case where the design is being used by a third party without the knowledge of the holder of the certificate, the holder of the certificate may claim damages in the court of law. This enables him to get compensation from the person violating his right over the usage of the design.
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