Design registration for one article, wherein the applicant is a proprietor or individual.
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Design registration is a type of intellectual property protection under which a newly created design applied to an article created under an industrial process can be protected from counterfeiting. This registration provides authority to the owner to use the Design for ten years, and the time can be further extended for the next five years. The present article briefs the Design Registration procedure in India.
A design is defined under Section 2(d) of the Designs Act 2001, as only the features of a shape, pattern, configuration, composition, or ornament of lines or colors that are applied to any article that is two dimensional, three dimensional, or both by an industrial process or any means whether mechanical, manual or chemical, separated or combined, which in the finished article are judged solely by the eye; but is not taken into account upon the principle of construction or anything which is in substance a merely mechanical device.
Following are some advantages that an owner can avail after getting registration of a design in India:
Exclusive rights over the new and original design
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 not be a mere mechanical contrivance
A design should be applied to an article and should appeal to the eye
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
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.
When a design is registered, copyright is bestowed upon the registered design for a period of 10 years (extendable by 5 years). Through this, the proprietor enjoys an exclusive right over the use of the design in the class in which it’s been registered.
Unlike copyright protection, the design registration doesn’t protect any literary or artistic work like books, calendars, stamps, tokens, buildings and structures, and maps. Further, an application cannot be made for designs similar to the national flags, emblems, or signs of any country.
Design registration is valid for a period of 10 years and can be extended for a further term of 5 years with the payment of the necessary fees. The design will lapse if the extension is not done in time, but can be restored in the following manner:
The application for restoration is to be made within one year from the date of the lapse of the design via Form 4, only in the case of non-payment of the extension fees. Once the application for restoration is approved, the necessary extension fees are to 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.
In the case where the design is three-dimensional, two copies of the design from the viewpoint of the front, back, top, bottom, and the two sides must 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.