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This article describes the importance and procedure pertaining to the publication of an unregistered design under Section 21 of the Design Act, 2000.
A design is considered new when it is not known to the public in India; or any other nation before the filing date or priority date of the application. It is new if it is considerably discernible from recognized designs or a combination of designs. Thus, an important step in design registration in India is the process of publication of the design. Here, wherein the applicant wishes to present the design in an exhibition before its final registration; they have the option to do so through Section 21.
Under the Design Act 2000; any disclosure is not deemed to be the publication of a design that is adequate to invalidate the copyright thereof; if such disclosure fulfilled certain requirements.
Wherein the owner of the design disclosed it to any other individual in good faith; and that other individual discloses the same in breach of good faith, the owner cannot be liable for disclosure.
Further; if the design has been displayed in an exhibition u/s 21 have been extended by the Central Government by notification; the same is deemed to be disclosed.
Where the description of the design is disclosed; during or after the exhibition, or if any individual displays the design or; the article and publishes its description without the privity or consent of the proprietor, the design is not deemed disclosed.
Therefore, to avail the benefits of Section 21; the registered owner / proprietor of the design application must provide a notice of such exhibition through Form 9; to the Controller before exhibiting the same.
The applicant must apply for registration of design within the duration of 6mos from the date of first displaying the design; or the publication of the description.
Displaying a design or of an article to which a design is assigned; at an exhibition to which the provisions of section 21 apply by the way of a notification by the Central Government; without the consent of the proprietor, does not take away the right of the latter to apply for its registration.
The same rule applies to any subsequent publication of the exhibited design or its description during or after the exhibition. However, this exception is allowed only if the individual or entity displaying the design or publishing the description of the same; gives to the Controller prior notice.
Under Form 9 wherein the proprietor wishes to notify the Controller of the exhibition of the design before its registration; they must pay the prescribed fee depending on their nature of business.
If the claimant is a natural person, the fee payable is INR 500. Where the applicant is other than a natural person the fee payable for a small entity is INR 1000; and for others except a small entity is INR 2000.
Such a privilege is only available to the applicant of the design and while on paper it may seem confusing; the permission given through Form 9 is particularly helpful for those who execute such exhibitions through Government authorization.
Such proprietors do not have control over who comes across their designs in the exhibitions. Thus they are allowed to prevent the dismissal of the design application on the grounds of prior publication; through Form 9 under section 21 of the Design Act, 2000.
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Advocate Rahul Dev is a Patent Attorney & International Business Lawyer practicing Technology, Intellectual Property & Corporate Laws. He is reachable at rd (at) patentbusinesslawyer (dot) com & @rdpatentlawyer on Twitter.
Quoted in and contributed to 50+ national & international publications (Bloomberg, FirstPost, SwissInfo, Outlook Money, Yahoo News, Times of India, Economic Times, Business Standard, Quartz, Global Legal Post, International Bar Association, LawAsia, BioSpectrum Asia, Digital News Asia, e27, Leaders Speak, Entrepreneur India, VCCircle, AutoTech).
Regularly invited to speak at international & national platforms (conferences, TV channels, seminars, corporate trainings, government workshops) on technology, patents, business strategy, legal developments, leadership & management.
Working closely with patent attorneys along with international law firms with significant experience with lawyers in Asia Pacific providing services to clients in US and Europe. Flagship services include international patent and trademark filings, patent services in India and global patent consulting services.
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