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Section 31 of the Design Act, 2000 provides for the Rectification of a design application in India. An applicant is required to file Form 17 under Rule 39 and 40 of the Design Rule, 2001 for design rectification by way of expunging, varying, or making an entry into the register for designs. However, the form does not encompass the cancellation of a design application.
The application for rectification of register of designs can be initiated by any person aggrieved by a non-insertion or omission of entry in the register, an entry made without reasonable cause, an entry mistakenly left behind on the register or a mistake or defect in any entry.
Under section 31 of the Act, the rectification application must be submitted along with the prescribed fees to the Controller, who in turn decides the proceedings. The applicant has the right to appeal the Controller’s decision and this right can be exercised in the High Court.
For the rectification of the register, on receipt of the application the Controller must notify all the individuals whose names, at the time of applying are entered into the register and have a claim in the design registration. Further, this rectification must also be advertised by the Controller in the Official Journal stated under section 145 of the Patents Act, 1970.
When a rectification application is filed, the parties that have an interest in the design application, have the right to file an opposition to the rectification. The Notice of opposition to any rectification must be submitted within three months of the advertisement of the rectification and the opponent must submit their written statement within fourteen days of giving notice of opposition.
The opponent must obtain the leave of the office to file such a written statement and the statement itself must establish the nature of the interest of the opponent, the facts upon which they base their opposition, and the relief that is sought. The Controller must provide a copy of both the Notice of opposition and the written statement as evidence for the design application.
When an appeal is sought against the order of the Controller, the applicant has the right to appeal the same to the High Court against such order under Section 31.
However, this appeal must be submitted within three months of the date of the order of the Controller. In determining the three months, the time taken in authorizing a copy of the order appealed against is omitted.
The appeal can either be initiated by the applicant or by an order of the Controller under section 31. The High Court has the right to dispose of the application so-referred to them and any order issued by the Court for rectification directs the Controller to make such rectification by way of a Notice issued in a prescribed manner.
It must be noted, that section 31 does not empower the Controller to issue an order cancelling the registration of a design that is available under 19.
Under Form 17 wherein the applicant seeks the rectification of the register of designs under section 31, they must pay the prescribed fee depending on their nature. 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.
The Rectification of Designs allows an individual to modify a design application in case of any inconsistency.
However, this process of rectification can solely be initiated once the design registration is filed, as this registration in India can provide important advantages to the business, including ownership of exclusive rights to produce and sell the Design.
This allows the registered proprietor of the design to eliminate their opponents from the market.
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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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