Design FAQ
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Design Cancellation in India
Design cancellation in India – When can a design be cancelled in India?Section 19 of the Indian Designs Act 2000, allows cancellation of a registered design (at any time after grant) if one or all of the following conditions are met: (i) the said design has been previously registered in India; (ii) it has been published in India or in any other country prior to the date of registration; (iii) the design is not a new or original; (iv) the design is not registrable under this Designs Act; and (v) it is not a design as defined under Section 2(d).
How can a registered design be cancelled in India?
The primary criteria for registration of a patent or design right in India is novelty and originality. Destruction of novelty either via prior publication/disclosure in India/abroad or copying of an already registered design or non-distinguishability from any previously registered design or inclusion of scandalous or obscene matter in the design to be registered are grounds for non-registrability of design or cancellation of an already registered design.
Procedure for Cancellation of Design in India
Cancellation of Design registration in India requires the person interested to file a statement in the requisite form along with evidence setting out the prior registration/usage/insufficiency of the registered design. The statement shall also include the nature of applicant’s interest so as to determine, whether the petitioner is a person interested.
Grounds for Cancellation of a Registered Design in India
Any person can file a petition to the Controller General of Patents, Designs and Trademarks (CPTDM) for cancellation of a registered design on any of the following grounds:
- That the design has been previously registered in India
- That it has been published in India or in any country prior to the date of registration
- That the design is not new or original design
- That the design is not registrable under the Designs Act
- That it is not a design as defined under the Act
Prior publication in a design application- Meaning
One of the pre-requisites of design cancellation is lack of novelty of the design application owing to prior publication of the said design in a trade catalogue, brochure, book, journal, magazine or newspaper containing photographs or explicit picture illustrations that clearly depict the application of the design on the same article, with the same visual effect.
However, if the visual effect of the pattern, the shape or the combination of the pattern, shape, dimension, colour scheme, if any, are not clear from the picture illustrations, the novelty cannot said to have been destroyed by prior publication, unless there are clear and unmistakable directions to make an article which is the same or similar enough to the impugned design.
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For more information on Design Cancellation, Cancellation of a Registered Design, Procedure of Cancellation of a Design in India, please write to us at: info@ssrana.com.
Under Section 30 of the Indian Designs Act, 2000, a person entitled by way of assignments, transmission or other operation of law of copyright can make an application in the prescribed format to the Controller of Designs for transmission of design rights. Section 30 (4) states that ‘The person registered as the proprietor of a design shall, subject to the provisions of this Act and to any rights appearing from the register to be vested in any other person, have power absolutely to assign, grant licenses as to, or otherwise deal with, the design and to give effectual receipts for any consideration for any such assignment, licence or dealing’.
Licensing Design Rights- Requirements
It is important that the licence or the creation of any other interest in a design is in writing and the agreement between the parties concerned is reduced to the form of an instrument embodying all the terms and conditions governing their rights and obligation and the application for registration of title under such instrument is filed in the prescribed manner with the Controller within six months from the execution of the instrument or within such further period not exceeding six months in the aggregate as the Controller on application made in the prescribed manner allows.
The person, who becomes entitled by such licence, may file an application in the prescribed form to the Controller to register his title along with original or copies of the instrument, certified by the Notary Public. Such application shall be submitted in Form-12.[1]
The Controller on receipt of application may ask for any other proof of title or written consent, to his satisfaction. If such document is a public document, an official or certified copy thereof may be presented. The Controller than on satisfactory proofs will enter notice of interest in the register of designs. Upon entry of its particulars in the register of designs, the instrument shall be effective from the date of its execution. The person registered as a proprietor shall have absolute power to deal with the design as far as assignments and licences etc. are concerned. An instrument, which has not been registered, shall not ordinarily be admissible in any Court as proof of title to copyright in a design or to any interest therein.[2]
[1] http://www.ipindia.nic.in/writereaddata/Portal/IPOGuidelinesManuals/1_30_1_manual-designs-practice-and-procedure.pdf
[2] http://www.ipindia.nic.in/writereaddata/Portal/IPOGuidelinesManuals/1_30_1_manual-designs-practice-and-procedure.pdf
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A registration of design in India will cease to be effective on non-payment of extension fee for further term of five years if the same is not paid before the expiry of original period of 10 years.[1]
Design Registration Restoration in India
If a registered design is lapsed due to non-payment of extension fee, lapsed designs may be restored provided the following conditions are satisfied[2]:
- Application for restoration on Form-4 with prescribed fees is filed within one year from the date of lapse stating the ground for such non-payment of extension fee with sufficient reasons.
- If the application for restoration is allowed the proprietor is required to pay the prescribed extension fee and requisite additional fee and finally the lapsed registration is restored.
Design Registration Restoration Procedure India[3]
- The proprietor or his legal representative may apply for restoration of the design.
- If the design is held by two or more persons, then, with the leave of the Controller, one or more of them without joining the others may apply for restoration.
- If the application for restoration is filed by any other person claiming as proprietor of the design, such application shall be accompanied by Form-11, for affecting a change in name or proprietorship in the register of designs. The application for restoration shall be proceeded with only after the change in name or proprietorship is affected as per provisions of the Act. However, if change in proprietorship happened after the design ceased to have effect, such an application for restoration from the latter alleged proprietor will not be entertained.
- If the registered proprietor failed to register a change of name before or after the cessation, he shall first apply for such alteration in the Register. The application for restoration shall be proceeded with only after change in name has been affected in the register of designs[4].
- The application shall include a statement fully setting out the circumstances that led to failure to pay the fee.
- The evidence must support the claim that the failure to pay was unintentional and there has been no undue delay in applying for restoration.
- Controller may require evidence in support of the statement.
- If the Controller is satisfied that the failure to pay fee for extension was unintentional and that there has been no undue delay in making the application, the Controller shall restore the registration of design.
- If in the opinion of Controller there is a prima facie case for not allowing the application for restoration, the proprietor of the design shall be intimated accordingly. In such a case, the proprietor of the design may request for a hearing in the matter within one month from the date of such intimation. Unless such a request for hearing is made, the application shall be refused by the Controller.
- If the registered proprietor requests for hearing within the time allowed and the Controller, after such a hearing, is satisfied that the failure to pay the fee for the extension of copyright is unintentional and there is no undue delay in the making the application for restoration, the application for restoration shall be allowed.
- The fact that a design has been restored is published in Official Journal.
[1] http://www.ipindia.nic.in/faq-designs.htm
[2] http://www.ipindia.nic.in/faq-designs.htm
[3] http://www.ipindia.nic.in/writereaddata/Portal/IPOGuidelinesManuals/1_30_1_manual-designs-practice-and-procedure.pdf
[4] Section 12, 13, 14. Rule 24 Form 4, 11. 41
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The official fees for design cancellation in India is INR 1500/- for natural person, INR 3000/- for small entity* (eithr alone or jointly with natural person) and INR 6000 for others except small entity.
The official fees involved for filing petition for design cancellation in India are as under:
| S.no. | On what Payable | Official Fees (INR) | ||
| For natural person | For other than natural person either alone or jointly with natural person | |||
| For small entity* | For others except small entity | |||
| 1 | On petition for design cancellation | 1500 | 3000 | 6000 |
Design Cancellation – Enforcing Design Rights
Section 19 of the Design Act, 2000 provides for design cancellation and states that any person interested may present a petition before the Controller (CGPDTM) for rectification of registered design at any time after the same has been registered. The statutory provision under Section 19 also stipulates the grounds on which a person can present a petition for design cancellation in India.
The various grounds on which any person can file a petition for rectification of a design in India are as under:
- design has been previously registered in India; or
- design has been published in India or in any other country prior to the date of registration; or
- design is not a new or original design; or
- design is not registerable under this Act; or
- that it is not a design as defined under the Design Act
A person aggrieved by the order of the Controller for design cancellation can appeal against the same before the High Court and the Controller may at any time refer any such petition to the High Court.
The Fourth Schedule appended to the Design Rules, 2014 provides for the official government fees for design cancellation in India and the same can be accessed here.
*The Official fees for filing cancellation of design in India depends on the type of applicant. Professional Fees not included.
Read More: Design Rectification- Grounds in India
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The official fees for design renewal in India is
- INR 2000/- for a natural person
- For other than natural persons, the official fee is INR 4000/-
- For small entity and INR 8000/- for others except small entity.
The official fees for restoration of lapsed design for :
- Naturals persons is INR 1000/-
- For Small Entity the fees is INR 2000/- and
- INR 4000/- for other than small entity.
The various costs involved in design renewal and design restoration in India are as under:
| S.no. | On what Payable | Official Government Fees (INR) | ||
| For natural person | For other than natural person either alone or jointly with natural person | |||
| For small entity | For others except small entity | |||
| 1 | On application for design renewal (known as extension of copyright) | 2000 | 4000 | 8000 |
| 2 | On application for restoration of lapsed design | 1000 | 2000 | 4000 |
| 3 | Additional fee for restoration of design | 1000 | 2000 | 4000 |
Design Renewal and Design Restoration in India
On issuance of registration certificate for a design, initially the term of registration or Copyright in a Design is ten years from the date of registration. In a case where priority is claimed with respect to a Design, the term is ten years from the priority date.
Extension of term of Design
This is also known as application for extension of copyright. Section 11(2) of the Design Act, 2000 provides for the extension of the term of Design and states that if before the expiration of ten years, application for the extension of period of copyright is made to the Controller in the prescribed manner then the Controller shall, on payment of prescribed fee, extend the period of copy-right for a second period of five years from the expiration of the original period of ten years.
Restoration of Design
As per Section 12(2) of the Design Act, 2000, if a registered design has lapsed due to non-payment of extension fee, then an application for restoration of lapsed Design is required to be submitted to the Controller alongwith prescribed form and fee, within one year from the date on which design is lapsed.
The Fourth Schedule appended to the Design Rules, 2014 provides for the official government fees for design renewal in India and the same can be accessed here.
*The Official fee for filing design renewal application in India is based on the type of entity i.e. natural person/ small entity. professional fees not included.
For more information on design renewal in India, please write to us at info@ssrana.com .
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Design Application Filing Registration Official Cost in India i.e official government fees for an individual / natural person is INR 1000/-, while for a small entity it is INR 2000/- and for applicants other than small entity the official fees for design application filing is INR 4000/-.
| Design Official Fees for | Official Government Fees (INR) | ||
| For natural person | For other than natural person either alone or jointly with natural person | ||
| For small entity | For others except small entity | ||
| On application for registration of design | 1000 | 2000 | 4000 |
Design Registration Stages in India : Know more about Design Filing in India here.
The main stages in Design Registration include Design Filing, Examination, Registration & Renewal.
Design Filing: For filing a design application in India, design application form alongwith the prescribed fee and four copies of the representation of the design are to be filed. The application can either be filed online or at the relevant Design Office.
Design Examination: Once an application is filed it is taken up for examination. No separate request for examination for a design application is required to be filed with the IPO. After examination of application, the applicant has to correct the defects and resubmit the application for acceptance within six months from the official date of the application.
Design Registration and Publication: Post the examination stage and after removal of defects in the design application, the same is published by the Patent Office. on acceptance of design application, the IPO issues the registration Certificate and thereafter the same is duly notified in the Patent Office’s journal.
Term of Protection: In India, a design registration lasts for a period of ten years from the date of registration of design.
The term of design registration can be further extended for another period of five years filing request in the prescribed manner alongwith the prescribed fee.
*Cost of Official fee only and based on applicant type as individual/startup/small entity only. Professional fees not included.
Design application forms can be accessed on the official website of Government of India at the below link. http://www.ipindia.nic.in/form.htm
For more information on Cost and fees for Design registration, Design Application Filing And Registration in India please write to us at: info@ssrana.com
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