Design

FAQ's on Design

• What is a design?
Under Design Act, 2000, A design must be some shape, configuration, pattern or ornamentation or composition of lines or colors applied to such article in any form by any industrial process or means but does not include any mode or principle of construction or any thing which is in Trade or Property mark or artistic work.

• How long does it last?
A design registration will initially last for 10 years from the filing date of the application and may be extended to further for a second period of 5 years. Thus the maximum period of registered design is 15 years.

• What are the advantages of a design registration?
Designs should not be seen as an alternative to patents but as a complementary protection.
Design registration is cheaper to obtain than patent protection and the application procedure is far shorter.
If the expected life-time of a product is short, and the product will be simple to produce, the design registration may be more useful than patents.
Action can be taken against an infringer and, unlike with copyright, actual copying of the protected design is not required to be proved.

• What are the disadvantages of a design registration?
Design protection does not protect a method of operation. It only protects features which are apparent in the normal use of the article.
A design registration does not prevent others from producing a product having the same or similar functions to a product embodying the design but it prevents others from applying the same design features to products.

• Wouldn’t an industrial design be protected as an "artistic work" under the Copyright Act?
If a design is registered under the Designs Act, it will not be granted protection under the Copyright Act, even though it is an original artistic work. In case the design is not registered under the Designs Act and it is an original artistic work, copyright protection under the Copyright Act will automatically subsist. However, copyright protection under the Copyright Act, will cease to exist as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the copyright owner. Therefore, it is highly recommended that industrial designs are registered under the Designs Act.

• What is the procedure for registration of designs?
Any person, who claims to be the owner of a new or original design that is not previously published in India, can apply for registration of design. For the purpose of registration, goods are classified into fourteen classes. The applicant may include in the application, a brief statement of the novelty he claims for the design. If the application is in order and satisfies all requirements of the Designs Act and the Rules, the Controller will register the design. Registration of designs is done by the Patent Office at Calcutta.

• Can the registration of a design be cancelled?
Based on an application, the High Court can cancel registration on the following grounds: - That the design has been previously registered; - That it has been published in India prior to the registration; or - The design is not new or original. The Controller of Patents can, on an application, cancel registration on the following grounds: That the design has been previously registered; or That it has been published in India prior to registration or - The design is not new or original. The Controller of Patents can, on an application, cancel registration on the following grounds: That the design has been previously registered; or That it has been published in India prior to registration.

• What are the rights conferred by registration?
Upon registration, the registered owner of the design gains the copyright in the design, ie he has the exclusive right to apply the design to any article in the class in which it is registered. This right is subject to the following conditions: 1. He must supply the exact representation/specifications, as required by the controller. If this is not done, the Controller may erase his name from the register. 2. The articles on which the design is applied should be marked with the word "registered"/"regd"/"rd", followed by the registration number. The exceptions to this rule are in the case of designs registered for lace and printed or woven textile goods.

• In which court can an infringement suit be filed?
The reliefs that the court may grant in an infringement suit, include: - An interim or final injunction restraining the defendant from continuing with the infringement, - Damages, - Delivery of infringing articles.

• What is meant by classification of goods under the Design Rules,2001 ?
Ans.: In the third Schedule of Design Rules, 2001 the classification of goods has been mentioned. Only one class number is to be mentioned in one particular application. This classification has been made on the basis of Articles on which the design is applied.

Practical Example: If the design is applied to a toothbrush it will be classified under class 04-02. Similarly if the design is applied to a calculator, it will be classified in class 18-01. Subsequent application by the same proprietor for registration of same or similar design applied to any article of the same class is possible, but period of registration will be valid only upto period of previous registration of same design.

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