In this article, the author has described the Application process for the Registration of Industrial Designs | Design Patents in India.
Design registration is a type of intellectual property; given to a newly constructed design assigned to a commodity developed under an industrial system. This protects a new design from infringement and counterfeiting. Design registration gives the creator or designer exclusive rights to use and employ the design for 10yrs. This tenure can be further lengthened for 5 years.
The term ‘design’ is defined under Section 2(d) of the Designs Act 2001; as strictly the characteristics of a structure; form, composition, configuration, decoration, lines, or colors.
that are assigned to any commodity that is 2-D, 3-D, or both by an industrial procedure or any other method; whether automatic, manual or chemical, segregated or incorporated, which in the complete commodity are assessed exclusively by the eye, but is not taken into account upon the doctrine of construction or anything which is in the material a simple mechanical instrument.
A structure, form, composition, configuration, decoration, lines, or colors; assigned to any commodity can be registered under the Design Act, 2000. But for a design to get registered, the design must be new and original.
Such design should pertain to the structure, configuration, pattern, or ornament assigned to a commodity. Finally, it must be assigned to any commodity by an industrial procedure.
Further, the design must be apparent and appear on the commodity. Once the design applied fulfils these requirements under the Design Act; the proprietor of a registered design can pursue a legal remedy in case of infringement.
An application for registration of a new design is made through Form 1 u/s 5 and 44 of the Act. Once filed; it is accompanied with a Power of Attorney. Applicant ratifies such Power of Attorney . Here the applicant is one; in whose name the application is being filed.
Additionally, in the Form, the applicant or its representative must provide the necessary data. The form should include; the Applicant’s name and address, their type of legal entity, whether a company, partnership, corporation, or individual, and their state of incorporation or citizenship.
The Form is also submitted with accompanying Photographs and Drawings of the commodity from seven positions; the front, back, top plan, lowest plan, left and right side height, and isometric.
These are submitted with six copies of each perspective. Lastly, the form also includes the name of the commodity to be registered under the Act; such as a vacuum jar, table, etc.
If the request in the Form is founded on a priority application; data concerning that priority application i.e. country, application number, and filing date must also be provided.
Recently, the Design (Amendment) Rules, 2014 introduced two categories of applicants; i.e., a natural person or other than a natural person.
The significance of the applicants’ category is the distinct fee structures; which is imposed on the applicant relying on the category they fall under.
Within this designated category of ‘Other than a natural person,’ there are two sub-types; i.e., a small entity or others except for a small entity.
The advantage given to a small business is the reduction in the fee that must be given while applying for design registration.
The purpose of design registration is to empower the registration certificate proprietor or owner; to prohibit any other individual from utilizing such design without his approval.
When a third party employs the design without informing the owner of the certificate; the proprietor of the certificate may allege damages in the court of law. This allows them to get the rebate from the individual for infringing his right over the design practice.
The application for the registration of a design for a natural person is INR 1000. Further, wherein the application is made by a small entity the fee is INR 2000; and if it is made by an entity except for a small entity the fee is INR 4000.
Nearly all countries including India observe the Locarno Classification for the registration of a design. This classification contains 32 classes and an extra class – 99 to encompass articles not falling under the initial 31 classes.
Extensively these classes are split up into sub-classes. A design application must be submitted in a specific class relying on the predominant material with which the goods; or commodities are brought about or is capable of being brought about. Wherein the application notes registering the design in more than one class; then each class for the registration must have a distinct application.
A disclaimer or novelty affidavit must be combined with each representation of the mechanical procedures, trademark number, and letters. The applicant or approved individual must authorize and ratify each representation. Once such application is submitted, the patent office evaluates the application, and allows for objections to be raised, if any.
Once all the objections that are raised by competitors are withdrawn; the design shall be awarded a Copyright certificate by the patent office. After an application is registered, it is disclosed in the Patent Office Journal within 1 month. It is then available for public statements for 3 months.
The Designs Act conserves the aesthetic significance of a commodity and not its functionality. Thus a classification founded on the subject matter of the commodity for which the design is sought will make searching for designs more detailed, lengthy, slow, costly, and ambiguous. Over time it has been argued that changes are needed in the established classification system.
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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).
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