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Design Registration

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Design registration for one article, wherein the applicant is a proprietor or individual.

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Design Registration

Design registration is a form of intellectual property protection that safeguards a newly created design applied to an article produced through an industrial process from unauthorized replication. This registration grants the owner exclusive rights to use the design for an initial period of ten years, with the potential for a further extension of five years. This article provides an overview of the design registration process in India

The term “design” is explicitly defined in Section 2(d) of the Designs Act 2001. According to this definition, a design encompasses the features of a shape, pattern, configuration, composition, or ornament involving lines or colors. These features are applied to any article, whether two-dimensional, three-dimensional, or a combination of both, through an industrial process or any means, be it mechanical, manual, or chemical. The assessment of these features, when applied to the finished article, is solely based on visual judgment. However, the definition excludes items governed by construction principles or those that are essentially purely mechanical devices.

Following are some advantages that an owner can avail after getting registration of a design in India:

  • Legal Status: An OPC acquires a distinct legal entity status, shielding its founder from personal liability for company losses.
  • An asset of the proprietor/owner
  • Can initiate a legal proceeding in case of infringement by a third-party
  • Serve as a prima facie evidence in an infringement suit
  • Right to sell, transfer and license the design with ease

Under the Design Act, 2000 for a design to be registered and protected under the Act, the following are essential requirements that need to be fulfilled

  • A design should be Original and new design. This means that it should not have been used or published previously in any country before the date of application of registration.
  • A design should be significantly distinguishable from known designs or a combination of known designs
  • A design should not comprise or contain scandalous or obscene matter
  • A design should be applied to an article and should appeal to the eye
  • A design should not be a mere mechanical contrivance
  • A design should not be contrary to public order or morality
  • Any person or the legal representative or the assignee can apply separately or jointly for the registration
  • The term “person” includes firm, partnership, small entity, and a body corporate.
  • In the case of an NRI, his agent or legal representative need to apply for Design Registration

The following documents are to be submitted to get design registration:

  • A certified copy of the original or certified copies of extracts from the disclaimer
  • Affidavits
  • Declaration
  • Other public documents can be made available on payment of a fee.

The affidavit should be in paragraph form and should contain a declaration of truth and verifiability. However, the controller may regulate the cost involved in design registration according to the fourth schedule.

Protection Offered by Design Registration

When a design is successfully registered, it grants the holder a copyright that spans a 10-year period, which can be extended by an additional 5 years. During this time, the proprietor enjoys an exclusive right to use the design within the registered class.

What Falls Outside the Scope of Design Registration?

In contrast to copyright protection, design registration does not cover literary or artistic works such as books, calendars, stamps, tokens, buildings, structures, and maps. Additionally, applications cannot be made for designs that resemble national flags, emblems, or symbols of any country.

Duration of Design Registration

Design registration remains valid for an initial period of 10 years, with the possibility of extension for an additional 5 years upon payment of the requisite fees. Failure to extend the registration in a timely manner leads to its lapse, but it can be reinstated as follows:

An application for restoration must be submitted within one year from the date of the design’s lapse, using Form 4, specifically in cases of non-payment of the extension fees. Once the application for restoration is approved, the necessary extension fees must be paid.

The first thing to be noted is that the application to register a design may be applied to five different authorities:

  • Controller Designs Patent Office in Kolkata
  • The patent office in Delhi
  • The patent office in Ahmedabad
  • Patent Office in Mumbai
  • The patent office in Chennai
  • The application for design registration must be filed with Form-1 along with the following details:
  • Name of applicant
  • Address of the applicant
  • Nationality of the applicant
  • In the case of a company, information regarding the place of incorporation and the legal status of the entity
  • The required fee is applicable
  • The class and the sub-class of the article under the Locarno Classification, of the article embodying the design
  • The name of the article to which the design is applied upon
  • Representation of the design
  • In the case where the design is two-dimensional, two copies of the design are to be submitted.
  • Further, the applicant must also highlight the unique features of the design that sets it apart from any other existing designs.
  • If the application is to register the design in more than one class, each class of registration must have a separate application.
  • Statement of disclaimer or novelty must be attached to each representation with respect to mechanical processes, trademark, numbers, letters, etc. it should also be endorsed and duly signed and dated on each representation by the applicant or the authorized person on behalf of the applicant.
  • After submission of the application, the patent office will examine the application and raise objections, if any. Upon the clearance or removal of all objections, the design shall be granted a copyright certificate by the patent office.

Under the provisions of Section 10 of the Design Act, 2000, registration can be canceled if

  • The design is unoriginal and if similar designs already exist
  • The design has already been registered in India
  • The design has already been published in another country prior to the date of registration
  • Does not comply with the characteristics of a design as mentioned under the Design Act.

Trademark vs Copyright vs Patent

 TrademarkPatentCopyright
What’s protectedAny word, phrase, symbol or design that recognizes and differentiates the source of one party’s goods from those of another.Inventions, such as procedure, manufacturer, composition, machines of matter as well as improvements to these.Books, articles, music, photography, sculptures, dances, sound recordings, motion films and other original works of authorship.
Requirements for protectionA mark must be distinguishable, in the sense that it must be able to identify the source of a certain good.A fresh, valuable, and unusual invention is required.A work must be unique, original, and created in a tangible manner.
Term of protectionAs long as the mark is used in commerce.20 yearsAuthor’s life span+ 70 years.
Rights GrantedRight to use the mark and to prohibit others from using identical marks in a way that could create confusion about the goods or services’ origin.Right to restrict others from manufacturing, selling, or importing the patented invention.Copyrighted works have the power to dictate their reproduction, creative works, circulation, public performance, and display.