The registration of designs in India is governed by the Designs Act, 2000, which was made effective from May 11, 2001, and the Design Rules, 2001. As per the Act, a design registration protects the features of shape, configuration, pattern, ornamentation or composition of lines or colors applied to articles. Since a design registration seeks to protect only the visual appeal of a design, it does not include in its scope any feature that is a mode of construction or mere mechanical device or any artistic work covered under the Copyright Act or any trademark covered under the Trademarks Act.
Further, each design registration is directed to a single class of articles, the class being selected based on a classification system provided in the Third schedule of the Act. The classification system is based on the International Classification System (Locarno Classification). A design registration exists for an initial period of ten years from the date of registration, which can be further extended for five years upon request. The date of registration is the date of application for registration except in the case of an application that claims priority from an application filed previously in a convention country, in which case the date of registration is the date of filing of the priority application.
The design applications have to be filed with the Office of the Controller General of Patents, Designs, and Trade Marks (CGPDTM) at Kolkata, under the Department of Industrial Policy and Promotion (DIPP) in the Ministry of Commerce and Industry. This office conducts an examination and grants the registration if the application meets all formal and substantive requirements of the Designs Act, 2000. The applicant is provided with sufficient opportunity, including a hearing, to amend their application, within permissible limits, to conform to the registration requirements.
TRENDS IN FILING AND REGISTRATION
With the growing awareness about the strength of protection afforded by a design registration in India, there has been a significant growth in the number of applications over the past decade. The fact that the examination procedure for designs in India is relatively fast, with the process being generally completed within 1-2 years from the date of application, has further added to its attractiveness as an IP asset.
The industrial sectors in which the leading filers of design applications operate is also varied. Some of the industries in which the major filers operate include automobiles, heavy industries, consumer electrical and electronic goods, software and information technology products, fast moving consumer goods, apparels, commercial vehicles, construction, and sanitary ware.
While it is clear that the awareness about Design registration in India is growing, there is still considerable scope for further increasing the usage and efficiency of the design registration system. With this in mind, the Office of the CGPDTM is taking a number of steps, such as digitization of applications, online publication of information regarding registered designs, development of a public search platform, conducting public awareness programs, and the like. Hence it is expected that the number of design applications filed and registered will keep showing an upward trend even in the near future.
WHO CAN FILE AN APPLICATION FOR REGISTRATION OF DESIGNS
An application for registration of a design can be filed by any person claiming to be a proprietor of a new or original design applied on an article. The proprietor could be:
- an author of the design;
- an exclusive assignee of the design;
- original proprietor of the design jointly with another person to whom rights have been transferred.
TYPES OF DESIGN APPLICATIONS
There are two types of design applications:
Ordinary Application: When an application for registration of a design is filed with the Indian Patent Office, without claiming any priority. Such applications are called as Ordinary Applications.
Priority Application: When an application for design registration is filed with the Indian Patent Office, claiming priority from already filed design application(s) filed in a convention country or group of countries or inter-governmental organizations is called priority application. The priority design application is required to be filed within 6 months from the date of earliest priority application. The said time limit is not extendable.
In case of priority applications, it is mandatory for the applicant to furnish the original certified copy of the priority document along with the application or within extended time limit of 3 months from the date of filing of the application. A separate request is required to be filed for seeking extension of time limit. Further, verified English translation of the priority document is required to be furnished if it is in language other than English.
DESIGNS THAT CAN BE REGISTERED
For a design to be registered under the Designs Act, it must satisfy the following six conditions:
- The design should be new or original, not previously published or used in any country before the date of application for registration.
- The design should relate to features of shape, configuration, pattern or ornamentation applied or applicable to an article. Thus, designs of industrial plans, layouts and installations are not registrable under the Act.
- The design should be applied or applicable to any article by any industrial process. Normally, designs of artistic nature like painting, sculptures and the like which are not produced in bulk by any industrial process are excluded from registration under the Act.
- The features of the design in the finished article should appeal to and are judged solely by the eye. This implies that the design must appear and should be visible on the finished article, for which it is meant. Thus, any design in the inside arrangement of a box, money purse or almirah may not be considered for showing such articles in the open state, as those articles are generally put in the market in the closed state.
- Any mode or principle of construction or operation or any thing which is in substance a mere mechanical device, would not be registrable design.
- The design should not include any Trademark or Copyright.
BENEFITS OF DESIGN REGISTRATION
All documents pertaining to a registered design are maintained by the Patent Office to put competitors on notice about registration of a design. A registered design provides the creator, exclusive rights over use of the design for a period of ten years, that can be further extended for a period of five years. In case of infringement or piracy of a registered design, the owner of the registered design can seek legal remedy under the Designs Act. Anyone found contravening to the copyright in a design, is liable for every offence to pay a sum not exceeding Rs. 25,000/- to the registered proprietor subject to a maximum of Rs. 50,000/- recoverable as contract debt in respect of any one design. Thus, registering a design provides legal remedy against infringement.
After filing of registration application they are directly taken for examination by the patent office. The process of design registration normally takes around 6 to 9 months. However, it may get extended under certain circumstances. It is pertinent to note that design registration is considered to be the quickest IP right a proprietor gets, among all other such rights.
ESSENTIAL DOCUMENTS REQUIRED FOR DESIGN REGISTRATION IN INDIA
Below is the list of all the crucial documents required for Design Registration:
- Submit a duly certified copy of original or certified copies of the extracts from all disclaimers;
- Proper Declarations;
- All Affidavits;
- Any other documents can be made available on the fee payment.
One should make sure to file the affidavit in paragraph form. It must include a declaration of truth and verifiability. As per the 4th schedule, the controller regulates the costs involved in the registration process.
PROCEDURE OF DESIGN REGISTRATION
Finishing the Design is the first step towards product achievement for any organization. A vast measure of assets and time is spent making plans that show up in the marketplace and take the customer’s attention. Organizations might want such plan rights to be secured with the goal that their valuable ideas are not taken by any 3rd party.
The office of the administration responsible for the registration of the mechanical plan is the Office of the Controller General of Patents, Trademarks, and Designs. Registration and safeguarding recent plans in India are directed by the Designs Act, 2000.
The lawful meaning of “Design” indicates the highlights, for example, pattern, colour, shape, configuration, or colour or a mix applied to any product or an article by any mechanical procedure, which in the completed article pleas to the eye. It does eliminate any rule of development or any trademark, property or creative mark. The structure should be new or unique and must not have been distributed in any country prior to the date of the registration application.
VALIDITY OF DESIGN REGISTRATION
The initial ten-year validity period of registration may be extended further for a period of 5 years by way of an application made in Form-3 accompanied by prescribed fees to the Controller before the expiry of the said initial period of ten years.
Design registration provides an additional means for protecting IP and is gaining competitive advantage in the increasingly commoditized market environment that most organizations are operating in. In India, the registration procedure is relatively fast and less expensive, and the rights obtained are equally effective as the other forms of IP rights. Proprietors of new designs are taking notice of this and the administration is responding to their requirements by upgrading the systems and processes for greater transparency, predictability, and efficiency.
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