Introduction to Industrial Designs
Introduction to Industrial Designs
We come across a variety of objects in our daily lives that we may recognize by looking at their specific design. Customers’ attention is drawn to aesthetically designed products the moment they notice them. These designs can be in the form of art, sketches, or graphics, among other things. From the slender architecture of a Coca-Cola bottle to engineered designs of your mobile, we are surrounded by artistic yet technical designs.
However, few people realize that these designs are in fact properties of the owner and these owners are protected by a right to prevent others from infringing their designs. In other words, industrial designs are yet another type of Intellectual Property (IP) which, once protected, grants the owner “intellectual property rights (IPR)”. This Article provides a preliminary insight into Industrial Designs.
The Patents & Designs Act enacted in 1911 provided for protection of Industrial Designs in India. The Patents Act, 1970 repealed the provisions of the Patents and Designs Act, 1911, so far as they related to Patents. However, the provisions relating to Designs were not repealed and continued to govern the Designs Law. India joined the WTO as a member state in 1995. Consequently, the Patents & Designs Act, 1911 was repealed and the Designs Act, 2000 was enacted, to make the Designs Law in India TRIPS compliant.
What is a Design?
Section 2(d) of the Designs Act, 2000 states, ““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; but does not include any mode or principle of construction or anything 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 Merchandise 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.”
Who has the Right to Register?
Any proprietor seeking registration of an original and unpublished design that does not appear to be contrary to any law or order can file an application for registration under the terms of the Indian Design Act, 2000.
Section 2(j) defines a proprietor as,
- where the author of the design, for good consideration, executes the work for some other person, means the person for whom the design is so executed;
- where any person acquires the design or the right to apply the design to any article, either exclusively of any other person or otherwise, means, in the respect and to the extent in and to which the design or right has been so acquired, the person by whom the design or right is so acquired; and
- in any other case, means the author of the design; and where the property in or the right to apply, the design has devolved from the original proprietor upon any other person, includes that other person.
Requirements for Design Registration
- Originality and Novelty: Only if a design is unique may it be considered for registration.
- The Design must not be contrary to public order or morality
How to file a Design application in India?
The owner of the Design must submit a complete application form along with the following details, as required by Section 5 of the Indian Designs Act 2000.
- Complete, Name, address and Nationality of the Applicant;
- Title of the Article;
- Class under which you desire to obtain Design protection;
- Priority can be claimed in India on the basis of a convention Application provided the Indian Application is filed within six months of the date of filing of the convention Application;
- Certified copy of the priority document and verified English translation of the priority document (if applicable) required
- DAS code can also be provided
- Views of the Article depicting the top, bottom, front, back, left side view, right side view and perspective views.
- The Power of Attorney.
- Assignment document(if priority country is US)
Purpose of Design Registration
The proprietor of the Design gets exclusive right to apply the design to the article in a class in which the design is registered.
A registered proprietor can institute a suit for injunction as well as recovery of damages against any person engaged in piracy of the registered design. Such legal proceedings can be instituted from the date of registration and till the expiry of the design. However, in case of reciprocity application, the registered proprietor can claim damages in only from the actual date on which the design is registered in India.
If any person commits piracy of a registered design, he shall be liable to pay for a payment of a sum not exceeding twenty thousand rupees, recoverable as contract debt. However, the total sum recoverable in respect of any one design shall not exceed fifty thousand rupees.