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FREQUENTLY ASKED QUESTIONS-DESIGNS IN INDIA


INDIAN IP LAWS

PATENTS
TRADEMARKS
DESIGNS
 
Design Applications
Design Application Status
Novelty of a Design
Design Filing Procedure
Online Design Filing
Designs Flowchart
Renewals of Design
Design Rectification
Design Filing Fees and Forms
Design Act India
Design Manual
Design FAQ India
Piracy of Registered Design
COPYRIGHT
DOMAIN NAMES
GEOGRAPHICAL INDICATIONS
ANTI-COUNTERFEITING
IP ENFORCEMENT AND LITIGATION
INFRINGEMENT & PASSING OFF OF TRADEMARK
FRANCHISING LAW
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SAARC IP LAWS

INTERNATIONAL IP LAWS

USEFUL LINKS

 

 

Q.1 What is a Design under the Designs Act, 2000?

A. 'Design' means the features of shape, configuration, pattern, ornament or composition of lines or colors applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined.  

 

Q.2 What are the benefits of Design registration?

A. The registration of a design confers upon the registered proprietor the exclusive right to apply a design to the article in the class in which the design has been registered.

A registered proprietor of the design is entitled to a protection of his intellectual property. He can sue for infringement, if his right is infringed by any person.

He can license or sell his design as legal property for a consideration or royalty.

 

Q.3 What is the term of a registered design?

A. Registration initially confers the right for ten years from the date of registration. It is renewable for a further period of five years. 

If the fee for extension is not paid for the further period of registration within the period of initial registration, this right will cease. There is provision for the restoration of a lapsed design if the application for restoration is filed within one year from the date of cessation in the prescribed manner.

 

Q.4 What designs are not eligible for registration?

A. The designs falling under the following category are not eligible for registration;

  1. Not new or original;

  2. Disclosed to the public anywhere in India or in any other country by publication or by use or in any other way prior to the date of filing;

  3. Not significantly distinguishable from known designs or combination of known designs;

  4. Comprises or contains scandalous or obscene matter.

Further to this any article falling in the following categories are also not registrable under the Designs Act;

  1. Book jackets, calendars, certificates, forms and documents;

  2. Dress making patterns, greeting cards, leaflets, maps and plan cards;

  3. Post cards, stamps and medals;

  4. Labels, tokens, cards and cartoons.

An important criterion for selection is that the article should exist by itself independent of the design applied on it. The aforementioned articles are therefore included in the non-eligible list as once the designs on these items are removed only a blank paper or cloth or the like remains.

 

Q.5. What artistic works are not subject matter of registration?

A. An artistic work as defined under Section 2(c) of the Copyright Act, 1957 is not a subject matter for registration which reads as follows:

"Artistic works" means: -

  1. A painting, a sculpture, a drawing (including a diagram, map, chart or plan) on engraving or a photograph, whether or not such work possesses artistic quality.

  2. A work of architecture and

  3. Any other work of artistic craftsmanship.

Q.6 Who can apply for a design?

A. An application for design registration can be filed by any person claiming to be the proprietor of any new or original design.

The designer or his assignee either alone or jointly with any other person or through a legal representative can also apply for design.

However, for applicants who are not residents of India applications are to be filed through an agent residing in India.

 

Q.7 Where and how to apply for design registration?

A. An application for registration of design can be filed at any of the four Patent Offices located at Delhi, Mumbai, Chennai or Kolkata. However, the Designs Wing of the Patent office at Kolkata is the head office for handling the design applications and the other three offices also transmit such applications to Kolkata for further processing and prosecution.

Any interested person may apply for a design registration by filing an application on the prescribed format (Form 1) along with the prescribed fee. Representations of the article are also required to be submitted along with the requisite form.

The online filing facility would be introduced shortly facilitating faster processing of the applications.

 

Q.8 What is the fees for the registration of a design?

A. The fees to be paid along with the application for design registration, is Rs.1000 and the fees for renewal is Rs.2000.

 

Q.9 How long does it take for a design to be registered and when does one get the registration certificate?

A. It takes a turnaround time of about 3-6 months for a design to be registered with the Patent Office. Once the application is accepted and registered a certificate of registration is issued to the applicant.

The Design application is published in the Journal only after its registration.

 

Q.10. When is the right time for applying for a design registration?

A. One should file the application as close as possible to the date of creation of the design and before it is made public either by use or publication, so that the design remains new at the time of such application.

 

Q. 11 What acts destroy the novelty of a design?

A. Prior publication or display or/and prior use of the design are the actions that would destroy the novelty of the design.

 

Q.12 What is the general procedure for registering a design?  

A.   After an application is made with the Indian Patent Office, an examination report may be  issued.  Within a stipulated time period i.e., within six months from the date of filing of the design application a reply is required to be filed in response to the objections raised in the examination report.

The response may be accepted or rejected by the Controller. If rejected, an opportunity of amending the application or submitting further replies is provided.

Once the objections are complied with, the application is accepted and a certificate of registration is issued. The registration is valid for a period of 10 years and can be renewed for another term of 5 years.

 

Q13. What constitutes piracy of registered design?

A. During the existence of copyright in any design it shall not be lawful for any person, without the consent of the registered proprietor;

  • for the purpose of sale to apply or cause to be applied, to any article in any class of articles in which the design is registered, the design or any fraudulent or obvious imitation thereof, or to do anything with a view to enable the design to be so applied;

  • to import such article for the purposes of sale.

  • to publish or expose or cause to be published or exposed for sale, the said article.

 

Q.14 What happens if someone makes copies of the registered design? What is the penalty for such infringement?

A. The proprietor of the registered design can file a suit for infringement against the infringer and claim damages.

If any person commits piracy of a registered design, as defined in Section 22, he shall be liable to pay a sum not exceeding Rs.25,000 recoverable as a contract debt, provided that the total sum recoverable in respect of any one design shall not exceed Rs.50,000.

 

Q.15. Can the same applicant make an application for the same design again, if the prior application has been abandoned?

A. Yes, the same applicant can apply again since no publication of the abandoned application is made by the Patent Office, provided the applicant does not publish the said design in the meanwhile.

 

Q.16. Are the registered designs open for public inspection?

A. Yes, registered designs are open for public inspection only after publication in the official gazette on payment of prescribed fee of Rs. 500/- on a request made on Form 5.

 

Q17. What is Hague Agreement?

A. Like any other Intellectual Property Rights, Industrial Design protection is limited to the country in which protection is granted. The Hague Agreement aims at providing a mechanism for securing protection of an industrial design in all the designated member countries by filing a single international application.

India is not yet a member of the Hague Agreement.

 

Q.18. How are goods classified under the Designs Act, 2000?

A. The Indian design classification system is derived from the International classification of Industrial designs, known as Locarno classification.

The Locarno Classification comprises:

  1. a list of classes and subclasses;

  2. an alphabetical list of goods in which industrial designs are incorporated, with an indication of the classes and subclasses into which they fall;

  3. explanatory notes.

The classes and the subclasses are denoted based on the functional characters of the article.

Example : If the article relates to "chair' or sofa-cum- bed',  the name  should be  provided accordingly and should be classified under Class 06 and sub-class -01 where it is stated as BEDS AND SEATS since it is classified in function\purpose oriented manner.

Click here for the complete list from WIPO's website:

 

Q.19 What is the register of designs?

A. The register of designs is a document maintained by the Patent Office, Kolkata as a statutory requirement.

It contains the design number, date of filing, name and address of proprietor and such other matters that would affect the validity of proprietorship of the design.

 

Q.20 How to retrieve information of a design application from the Indian Patent Office (IPO) website?

A. One can obtain the status of a design application from the Indian Patent Office website by entering the six-digit design application number in the space provided. The current status of the application would be displayed.

For more information on Design in India please write to us at: info@ssrana.com

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