Design Means only the characteristics of form, pattern or composition of line or color applied to any article in 2D or 3D format by any manual or mechanical process that can be judged by the naked eye.
Does not include any trademark or artistic work (under copyright)
Owner of a new or original design Includes:
(1) Author of the design
(2) A person who has another person execute the design and
(3) A person who acquires the design right from an author.
Design application-
The design request can be made by anyone claiming ownership of a new or original design and can be submitted to the Controller. The application must be submitted in a prescribed format and must be accompanied by four copies of the design representation and the prescribed fee. This request can be sent by hand or by certified mail.
The class in which said design will be registered will be indicated in the request. The Designs Rules, 2001 prescribe the classification under which the application may be preferred. In the application, if any objections appear to the Controller, which requires amendment in an application, he may communicate the list of such objections to the applicant. The applicant will remove or resolve the objections within 6 months. Under Sec. 6, the Design is registered for all or any of the articles included in a particular class. When the design is registered for any article that corresponds to a single classification, the application for the same design but for any other article in the same classification can be granted to the same applicant.
Let’s say that ‘Bottle’ and ‘bag’ fall into the same classification and if someone has gotten a skin under ‘bottle’, they won’t be denied getting the same skin for ‘bag’ themselves. The Controller can grant or deny the request. In case of refusal, the aggravated person may prefer an appeal to the Superior Court. The Comptroller will grant a certificate of registration to the applicant and will publish the fact of registration of the design. A design register is kept at the Patent Office, in which all the details of a design will be recorded. Said registration is prima facie evidence of any fact related to the design.
Reciprocal Application:-
Anyone who has applied for any design in the UK or any other convention country can claim the same design in India. However, such claim must be made within 6 months from the date of application in the UK or other convention countries.
Rejection: – The controller will not register the design if:
• It is not new or original
• Has been published in India or elsewhere in any format before the priority date of an applicant’s application
• It is not significantly different from the known design or its combination
• Contains scandalous or obscene material.
Substitution: – When before design registration:
• A person has applied for the registration of any design, and • Another person claims the same design as your design due to any agreement or assignment, then the Controller may proceed to register such design in the name of the claimant.
However, the design must be identified to the satisfaction of the Controller and the contract or assignment must also be produced by virtue of which the claimant’s claim has been made.
Restoration: – When the renewal fee is not paid, the right has expired and can be restored within 1 year from the expiration date of an original term by paying a fee. The restore request, as requested by a requester, must be published by the Controller.
Pre-Sale Marking: When an item’s design is registered, a mark with the word “Registered” or “Regd.” will be affixed along with the registration number to said item prior to delivery for sale of said item.
Enrollment Cancellation:
Any interested person may petition the Controller for cancellation of the design registration for the following reasons:
• The design is already registered in India by any other person
• Has been published in India or elsewhere before its priority date
• The design is not new or original
• Does not enter the design definition. The request will be made in duplicate and a copy will be sent to the owner of record.
The registered owner may file his counter statement within a prescribed period. The intervener will set a hearing date with 10 days notice and will decide on the matter. Any person aggravated by the Comptroller’s decision may prefer an appeal to the Superior Court.
Registered Design Piracy:
The following acts are considered an infringement of the design, if done without the permission of the registered owner:
• Apply design or its imitation on any item in your sale
• Import any item for sale purposes
• Knowingly posting any items for sale
Any person who performs the above acts in contravention of the Act will be required to pay Rs 25,000 to a landlord. In addition, the owner also has the right to sue for damages or injunctive relief in District Court.
OTHER PROVISIONS:
1. All records kept under this Act in the Patent Office are open for inspection and any person may obtain certified copies of any entry in said prescribed record upon payment of a fee.
2. When a design request has been denied, any information, drawing, photograph or representation related to said request will not be open to inspection.
3. Any person who has a right to any design by reason of any assignment or transfer may apply to the Controller and the Controller will, at that time, record them as the owner of such design.
4. The controller will not reveal any information of a design if it may be detrimental to the security interests of India.