In a layman’s language, the word design means ‘a plan or drawing produced to show the look and function or workings of a building, garment, or other objects before it is made.’ or ‘a decorative pattern’. Further, as per the Design Act, 2000, it means:
However, it does not include any mode or principle of construction or any trademark or property mark or artistic work as a trademark or artistic work can be registered under Trademark Act or Copyright Act whatsoever may be.
The registration and protection of industrial designs in India are administered by the Designs Act, 2000, and corresponding Designs Rules, 2001 which came into force on 11th May 2001 repealing the earlier Act of 1911. The Design Rules, 2001 was further amended by Designs (Amendment) Rules 2008 and Designs (Amendment) Rules 2014. The last amendment in Designs Rules came in to force from 30th December 2014, which incorporates a new category of applicants as small entities in addition to a natural person and other than a small entity.
The industrial design recognizes the creation of new and original features of new shape, configuration, surface pattern, ornamentations and composition of lines or colors applied to articles which in the finished state appeal to and are judged solely by the eye.
A design should:
The following can be the applicant:
Step 1: Finding out whether any registration already exist
The Design office can assist you to search whether the design has been previously registered or not. For the same, an application under Form No. 6 with requisite fees needs to be filed.
Step 2: Preparing a representation of the design
This is the most important step and a procedure that needs to be done very meticulously as it is observed that 90% of the applications are objected to formality issues when the one is not able to explain its design properly. It should be the exact representation of the article on which the design has been applied. Under this, we would have to include:
A statement of novelty i.e. the innovative feature in the design.
Disclaimer i.e. in case anything on design is likely to be confused by a trademark or contains words, letters, numerals, etc. over which exclusive claim is not being made is to be mentioned specifically.
Step 3: Identifying the class of design
Designs are required to be categorized in separate classes in order to provide for systematic registration. There are 32 classes in all out of which you have to opt-in which class your design is falling into.
Step 4: Claiming a priority date
If you have applied for protection of the design in convention countries or countries which are members of inter-governmental organizations, you can claim registration of the design citing a priority date in India. Provided such an application is made within six months from the date of filing of the application in such a convention country.
Step 5: Filing of application and payment of Fee
The application for design shall be filed in Form I along with prescribed fees of Rs. 1,000/- (for natural Person) and Rs. 4,000/- (For other than natural Person), representation sheet and power attorney (in case application is filed through a patent agent or legal practitioner).
Step 6: Complying with objections (if any)
If the Design Office seeks additional information or clarifications after preliminary examination, please ensure that these are provided promptly or maximum within three months from the date of communication of the statement of objections or else, the application shall be treated as abandoned.
Step 7: Registration and Publication
Once an application is registered, it is published in the Patent Office Journal ordinarily within one month and is open for public comments for the next three months. Upon registration, the Controller issues a certificate of registration to the proprietor of the design.
The registration of a design confers upon the registered proprietor the exclusive right to apply a design to the article in the class in which the design has been registered.
A registered proprietor of the design is entitled to better protection of his intellectual property. He can sue for infringement if his right is infringed by any person. He can license or sell his design as legal property for consideration or royalty. Registration initially confers this right for ten years from the date of registration. If the fee for extension is not paid for the further period of registration within the period of initial registration, this right will cease. There is provision for the restoration is filed within one year from the date of cessation in the prescribed manner.