This note is only intended as a general overview and is not to be viewed as a substitute for legal advice. Brands & Bonds shall not be liable for any actions taken or not taken on the basis of this note.
The Designs Act 2000, repealed and replaced the erstwhile Act Designs Act 1911, and presently governs the protection of designs in India. The Designs Rules 2001 which was amended further in 2008, streamlines the procedure for prosecution and registration of design applications in India. Though India was not a party to the Locarno Agreement, Indian Designs registry follows the Locarno classification of International Classification of Designs which is incorporated in the Third Schedule of Design Rules.
As per the Act, Design means the feature of shape, configuration, pattern, ornament or composition of lines or colors applied to any article whether in two dimensional or three dimensional or both by an industrial process which in the finished article appeal to and judged solely by the eye.
Precisely, a design is a protection awarded to the ornamental or aesthetic or artistic or visual aspect of an article and the imperative aspect is that it shall be judged solely by eye. Practically many articles are intertwined with ascetic and functional features but, it is to be kept in mind that the technical/functional features however it be advantageous shall not qualify for design registration in India.
A design is qualified for registration provided it satisfies the following conditions.
It is always advisable for the applicant to run a design search at the design database of the Indian Design Office. It would enable the applicant to search for the published design applications.
A design application can be filed by a natural person, small entity, or any other type of entity. The application should be accompanied by a claim of novelty and in case of a convention application the priority documents should also be submitted. Presently, the design application can be filed online irrespective of the jurisdiction or territorial location of the agent/attorney. The representation of the design can be in either in the form of exact drawings, photographs, tracings or specimens and at least four to five views of the article with, front view, back view, top view, right view may be provided.
The requirements of filing the design application are as follows.
A design can be applied only in one class and if the particular design is applied in articles which falls under different classes, then separate application is required to be filed. With respect to the number perspectives of the representations it is to be noted that there are no specific requirements mentioned however, it is advisable to provide all basic views/perspectives of the article.
If the design application claims priority from a corresponding convention application, the following additional details are required;
The certified document and verified English translation if required could be submitted at a later stage.
On filing of the application, the Design Registry allots an application number within a day or two. Thereafter the Design Registry conducts both procedural and substantive examinations. If the design application does not comply with any legal requirement, the office action against such application with the objections shall be issued by the examiner.
In the event of any such objections are raised by the examiner the applicant is required to rectify the defects and overcome the objections and consequently the application should be resubmitted to the Designs Registry for reconsideration and acceptance.
It is always advisable to make the rectifications at the earliest in the light of the fact that the defects need to be rectified within a period of three months from the date of official communication but shall not exceed six months from the date of application. The applicant or agent could also seek for a hearing within the said six months. On acceptance of the application by the registrar, the Design Office shall grant the Certificate of Registration which shall be valid for a period of ten years and could be renewed for an additional period of five years. On acceptance, the registration is published in the Official Journal.
It is interesting to note that there is no procedure to oppose registration of a design under Indian law. But, a design can be cancelled by any person interested by filing a petition for cancellation on any of the following grounds:
Designs in the present industrial era plays a very valid role and adds on to the creation of IP portfolio which culminates in monetizing the assets. The design registration and protection in India is comparatively easy and expeditious.
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