Something that has an impact on the appearance of an article or a part of an article can be said to be a design. An article embodying novel and original design provides that product with an aesthetic look that may potentially grab the attention of the customers.
“Design,” is defined in Section 2 (d) of the Designs Act 2000 (the Designs Act). Design means only the features of shape, configuration, pattern, ornament or composition of lines or colors applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 or the property mark as defined in section 479 of the Indian Penal Code or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957.
The definition is exclusive and only those which satisfy the following conditions can be brought under the purview of design:
1. Design primarily represents features of shapes, configuration, pattern, ornament, color or composition of lines.
2. Such shape, configuration, pattern, ornament, color, or composition of lines should be applied to any article.
3. Such article may be two dimensional or three dimensional or both.
4. Any of these features may be one that is applied by any Industrial process or means which may be manual, mechanical, chemical, separate or combined.
5. And such an application of the aforesaid features in the finished article shall appeal to and judged solely by the eye.
6. It does not include any mode or principle of construction or anything which is in substance a mere mechanical device.
7. It does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 or the property mark as defined in section 479 of the Indian Penal Code or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957.
The definition of Design under the new Act has been widened. Under the previous law, the Design registration was granted only for the visual appearance of an article which included shape, configuration pattern, and ornamentation whether in two or three dimensions.
Under, the Designs Act 2000, a Design registration can now be obtained for new or original features of shape, configuration pattern, ornamentation or composition of lines or colours as applied to an article, whether in two or three dimensions or both. A Design is something which determines the appearance of an article, or some part of an article. Designs are applied to an article with the objective of ornamenting and beautifying the article. If a particular feature is so applied on an article that it does not appeal to the eye at all and is incapable of attracting a prospective consumer in any manner for the purchase thereof, then such feature will not fall within the scope of a design.
A visual characterization of an article which influences a person to purchase an article in preference to other articles which are identical in function but differ in appearance, such characterization would also meet the criteria of a design. A design must be applied in the article itself as in the case of a shape or configuration which is three-dimensional, e.g., shape of a bottle or flower vase or the case of design which is two dimensional, e.g., design on a sari, bed sheet, wallpaper which serves the purpose of ornamentation. It should be one which catches the eye of the purchaser.
In Delhi Metro Plastic Industries v. Galaxy Footwear case, it was held the definitions of “design” in Section 2(5) of the 1911 Act and Section 2(d) of the 2000 Act were slightly different and the present definition had certain additional features. The legislation has amplified the definitions of article and design to confirm them with international accepted definitions for providing wider protection. The definition of article has been broadened to include parts of articles sold separately within its scope. The definition of Design has also been amplified to incorporate the composition of lines and colors to avoid overlapping with Copyright Act, 1957 regarding the definition of design with respect to artistic work.
WHAT DESIGNS CAN BE REGISTERED?
A design that is covered under section 2(d) of the Act and conforms to the requirement of novelty, originality, and is not prejudicial to the public order or morality or security of India can be registered under the provisions of the Designs Act, 2000 and Designs Rules, 2001.
Section 2(d) defines the scope of designs under the Designs Act.
Section 4 of the Designs Act, 2000, briefly explains the terms “novelty” and “originality”. A design is said to be novel when it is disclosed to the public neither in India nor in any other country prior to the date of filing for ordinary applications.
Section 2(g) of the Act defines originality of design as the design which is originally created by the author. A design can be considered to be original if they are known previously but are new in their application.
Section 5(1) of the Act explicitly mentions that for the purpose of registration a design should not be contrary to the public order and morality. The controller may refuse to register a design if it is prejudicial to the public order and morality by virtue of section 35 of the Act.
Laying reference on Section 46 of the Act a design cannot be registered if it is prejudicial to the interest of the security of India. In case a design registered under the Designs Act is found against the interest of the security of India, the controller may even cancel the registration of such design.
Section 46(b) of the Act broadly describes what all designs could be prejudicial to the security of India. Application of any features mentioned in section 2(d) of the Act, to any article which may be used for war or has been fabricated directly or indirectly for the purposes of military establishment or war or other emergencies in international relations.
WHAT DESIGNS CANNOT BE REGISTERED?
If the article on which the design has been applied is a mere mechanical device, mode, or principle of construction, the design cannot be registered. Any trademark as defined in Section 2(zb) of the Trademarks Act, 1999, or any property mark as mentioned in Section 479 of Indian Penal Code, 1960 or any artistic works defined in Section 2(c) of the Copyrights Act, 1957 lies beyond the purview of design. Any creation of artistic craftsmanship, or artistic architectural design of a structure or building, or any painting, sculpture, drawing, map, chart, plan, diagram, an engraving or a photograph even though they possess artistic quality cannot be registered under the provisions of the Designs Act, 2000 and Designs Rules, 2001.
Some non-registrable designs mentioned in the Manual of Designs Practice and Procedure are books jackets book jackets, calendars, certificates, forms, and documents, dressmaking patterns, greeting cards, leaflets, maps, and plan cards, postcards, stamps and medals, labels, tokens, cards, and cartoons. The rationale behind keeping the aforementioned designs outside the ambit of design is the fact that once the design is removed the articles cease to exist.
SIGNIFICANT CASE LAWS
In the case of Sifam Electrical Instrument Co Ltd V Sangamo Weston Ltd., it was observed that any integral part of an article could not be registered under the Act if it does not possess a unique identity.
In the case of Glaxo Smithkline CH GmbH & Co. v. Anchor Health & Beautycare P. ltd. it was held that a mere mechanical device lies beyond the purview of designs and hence cannot be registered.
In the case of Narumal Khemchand v. The Bombay Co., Ltd. It was clarified that a trademark infringement suit cannot be instituted against a party copying design on the account of the fact that trademarks cannot be registered under the Designs Act.
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