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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