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WHAT IS DESIGN?
As per the definition of the Design Act, 2000 the design means only the features of shape, configuration, pattern, ornament or composition of lines or colours 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.
The definition of design does not include any mode or principle of construction or any-thing which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchan-dise Marks Act, 1958 or 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 word article has also been defined under the Design Act. An article means any ar-ticle of manufacture and any substance, artificial, or partly artificial and partly natural and includes any part of an article capable of being made and sold separately.
WHAT DESIGN CAN BE REGISTERED?
The design should be new and original;
The design should not have been previously published or used in any country before the date of application for registration;
The novelty of the design may reside in the application of a known shape or pattern;
The design should relate to features of shape, configuration, pattern or ornamentation applied or applicable to an article;
The design should be applied or applicable to any article by any industrial process;
The features of the design in the finished article must appeal to and judged by the eye;
The design must be capable of being sold separately;
WHAT ARE REQUISITION FOR FILING THE DESIGN APPLICATION?
For filing a design application, one would require to submit the following information/documents:
Any word, name, brand and mark which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geo-graphical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service;
- Name, address and nationality of the applicant;
- The photographs of Different views of the article e.g. Front, back, top, bottom, left side, right side and perspective views of the article. In case the article is not manufactured or produced, the engineering line drawings of different views can also be filed along with the application;
- Name of the article and International class number
- Nature of the article and its purpose of use;
- Particulars of priority application (where applicable);
- Certified copy of Priority Document (when priority claimed) along with its English transla-tion. Priority document can be filed after the filing of application but within three months time from the date of filing application subject to payment of late filing fees;
- Power of Attorney/General Power of Attorney signed by the applicant;
WHAT IS EXAMINATION OF DESIGN APPLICATION?
After the application is filed, the application is examined by the examiner and if the examiner finds the application in order and no objection is raised the certificate of registration of design is issued between 3-4 months. If the examiner raises any objection, the examination report is is-sued and send to the applicant with direction to file the response to the same within six months from the date of filing the application or the time limit as furnished in the examination report. The time to file the response to the examination report can be extended by another three months. Once the objection and /requisitions/examination report are complied with the design registration certificate is issued.
After the design is registered, the same is published along with the relevant views of article and other relevant information in the Design Journal.
Before filing of the design application, search can also be conducted by filing an application with requisite fee and details of design and photographs/drawings thereof whose search is required. Otherwise the online search facility is not available for the general public and online design search can be conducted only when the registration number or other details are available.
HOW LONG THE DESIGN IS VALID AFTER REGISTRATION?
The duration of the registration of a design is initially ten years from the date of registration. Where priority is claimed and has been allowed the duration is ten years from the priority date. Period of registration may be extended by further period of 5 years. The registered design holder may make application for such extension as soon as the design is registered.
RESTORATION OF DESIGN
In case a design registration ceases to have effect due to failure to pay fees for extension an application for restoration may be filed within one year from the date of lapse.
- Transfer Of Right Of Ownership
- Ownership in a registered design can be transferred by means of assignment, transmission or operation of law.
- The instrument of transfer must be in writing.
- The person entitled under the transfer must within 6 months from the execution of instrument make an application for registration of his title.
CANCELLATION OF REGISTRATION OF DESIGN
Petition for the cancellation of registered designs can be filed at any time during the term of reg-istration before the Controller of Designs on grounds of prior publication, prior registration in In-dia, lack of novelty and originality.
INFRINGEMENT OF REGISTERED DESIGN
Any unauthorized and illegal use of a registered design or its obvious imitation belonging to the same class in which the design has been registered for purpose of sale or importation or pub-lishing such articles or exposing them for sale with the knowledge of illegal use of design amounts to piracy of registered design.
A suit for infringement, injunction and recovery of damages etc. can be instituted by the regis-tered proprietor of design in any court not below the court of District Judge. The piracy of a reg-istered design does not amount to an offence and therefore there is no criminal action against the infringer/pirator.