What is Design?
“Design” means only the features of shape, configuration, pattern, ornament or
composition of lines or colours 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, which in the finished article
appeal to and are judged solely by the eye; but does not include any mode or principle
of construction or anything which is in substance a mere or principle of construction or
anything which is in substance a mere mechanical device, and does not include any trade
mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise
Marks Act, 1958 (43 of 1958) or property mark as defined in section 479 of the Indian Penal
Code (45 of 1860) or any artistic work as defined in clause (c) of section 2 the Copyright
Act, 1957 (14 of 1957).
The outward appearance of a product or part of it, resulting from the lines,
contours, colours, shape, texture, materials and/or its ornamentation.
New or Original Designs:
A design to be registrable must be new or original. Original means originating
from the author of the design. New applications of old designs are registrable.
Designs which are not new or original or disclosed to the public anywhere in
India or in any other country or not significantly distinguishable from known
designs or combinations of known designs or comprising scandalous or obscene
matter are not registrable. This Indian legal position is more on the lines
excluding non-registrable designs by identifying the categories of designs
not registrable rather than positively reciting what are registrable designs.
What is the object of registration of Designs?
Object of the Designs Act is to protect new or original designs so created
to be applied or applicable to particular article to be manufactured by
Industrial Process or means. Sometimes purchase of articles for use is
influenced not only by their practical efficiency but also by their appearance.
The important purpose of design Registration is to see that the artisan,
creator, originator of a design having aesthetic look is not deprived of
his bonafide reward by others applying it to their goods.
What is a product?
A product can be any industrial or handicraft item including packaging, graphic
symbols and typographic typefaces but excluding computer programs. It also includes
products that are composed of multiple components, which may be disassembled and
Why protect your designs?
The design or shape of a product can be synonymous with the branding and image
of a company and can become an asset with monetary value that could increase.
If you do not apply for protection others may benefit from your investments.
What is a utility model?
A utility model is an exclusive right granted for an invention similar to a patent.
It is sometimes referred to as a petty patent or an innovation patent. It may be
granted to anyone who invents or discovers any new and useful process, machine,
article of manufacture, compositions of matter, or any new useful improvement thereof.
What is the difference between a Patent and a Design?
A patent covers the function, operation or construction of a new creation. To be
patentable, a function must be innovative, have an industrial application and be
described in such a fashion that a man of the art is capable of reproducing the process.
A design covers the appearance only of a product. A design cannot protect the function
of a product.
If protecting a product with both a patent and a design registration (i.e. a new product
can perfectly include both new functions and a new appearance), the timing of the
applications will be crucial, as it must be ensured that the publishing of one or
other of the rights does not destroy the novelty of the other application.
Can stamps. Labels, tokens, cards, be considered an article for the purpose
of registration of Design?
No. Because once the alleged Design i.e., ornamentation is removed only
a piece of paper, metal or like material remains and the article referred
ceases to exist. Article must have its existence independent of the Designs
applied to it. [Design with respect to label was held not registrable, by an
Order on civil original case No. 9-D of 1963, Punjab, and High Court]. So,
the Design as applied to an article should be integral with the article itself.
What is meant by Property mark as per the Indian Penal Code (Sec. 479)?
A mark used for denoting that movable property belongs to a particular person is
called a property mark. It means that marking any movable property or goods, or
any case, package or receptacle containing goods; or using any case, package or
receptacle, with any mark thereon. Practical example: The mark used by the Indian
Railway on their goods may be termed as a Property Mark for the purpose of easy
identification of the owner.
When does the Applicant for Registration of Design get the registration
When an application for registration of a Design is in order, it is accepted
and registered and then a certificate of registration is issued to the applicant.
However, a separate request should be made to the Controller for obtaining a
certified copy of the certificate for legal proceeding with requisite fee.
Design Registration System:
Most countries provide for national design laws providing for a system to
administer the registered designs. The process typically involves filing
applications for registration of designs in the prescribed format, remedying
the objections, if any, by the Design Examiner and getting the design granted.
India has adopted a new classification that conforms to the Locarno Classification
of industrial designs.
What is a Register of Designs?
The Register of Designs is a document maintained by The Patent Office, Kolkata,
as a statutory requirement. It contains the design number, class number, date of
filing (in this country) and reciprocity date (if any), name and address of Proprietor
and such other matters as would affect the validity of proprietorship of the design.
It is open for public inspection on payment of prescribed fee & extract from register
may also be obtained on request with the prescribed fee.
What is the effect of registration of design?
A5: The registration of a design confers upon the registered proprietor 'Copyright'
in the design for the period of registration. 'Copyright' means the exclusive right
to apply a design to the article belonging to the class in which it is registered.
What is the date of registration?
The date of registration except in case of priority is the actual date of filing of
the application. In case of registration of design with priority, the date of
registration is the date of making an application in the reciprocal country.
What is the duration of the registration of a design? Can it be extended?
The duration of the registration of a design is initially ten years from
the date of registration, but in cases where claim to priority has been allowed
the duration is ten years from the priority date.
This initial period of registration may be extended by further period of 5 years
on an application made in Form-3 accompanied by a fee of Rs. 2,000/- to the
Controller before the expiry of the said initial period of Copyright.
The proprietor of a design may make application for such extension even as soon
as the design is registered.
Is it mandatory to make the article by industrial process or means,
before making an application for registration of design?
No, design means a conception or suggestion or idea of a shape or pattern
which can be applied to an article or intended to be applied by industrial
process or means. Example - a new shape which can be applied to a pen, thus
capable of producing a new pen on the visual appearance. It is not mandatory
to produce the pen first and then make an application.
Why is it important for filing the application for registration of
design at the earliest possible?
First-to-file rule is applicable for registrability of design. If two or more
applications relating to an identical or a similar design are filed on different
dates only first application will be considered for registration of design.
Can the same applicant make an application for the same design again, if the
prior application has been abandoned?
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.
How to get information on registration of design?
After registration of design, the most relevant view(s) of the article along with
other bibliographic data will be available in the official gazette, which is being
published on every Saturday. However, such provision cannot be implemented at this
stage due to insufficient infrastructure.
Whether it is possible to transfer the right of ownership?
Yes, it is possible to transfer the right through assignment, agreement, transmission
with terms and condition in writing or by operation of law. However, certain restrictive
conditions not being the subject matter of protection relating to registration of design
should not be included in the terms and condition of the contract/agreement etc. An
application in form-l0, with a fee of Rs. 500/- in respect of one design and Rs. 200/-
for each additional design, for registration of the transfer documents is required to be
made by the beneficiary to the Controller within six months from the date of execution of
the instruments or within further period not exceeding six months in aggregate. An
original/notarized copy of the instrument to be registered in the register of design
is required to be enclosed with the application.
How does a registration of design stop other people from exploiting?
Once a design is registered, it gives the legal right to bring an action against
those persons (natural/legal entity) who infringe the design right, in the Court
not lower than District Court in order to stop such exploitation and to claim any
damage to which the registered proprietor is legally entitled. However, it may please
be noted that if the design is not registered under the Designs Act, 2000 there will
be no legal right to take any action against the infringer under the provisions of the
Designs Act, 2000. The Patent Office does not become involved with any issue relating
to enforcement of right accrued by registration. Similarly the Patent Office does not
involve itself with any issue relating to exploitation or commercialization of the
What is an artistic work which are not subject matter of registration?
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: - (i) A painting, a sculpture, a drawing (including a diagram, map, chart
or plan) or engraving or a photograph whether or not such work possesses artistic
quality. (ii) A work of architecture and (iii) Any other work of artistic craftsmanship.
Can the Registration of a Design be cancelled?
The registration of a design may be cancelled at any time after the registration of
design on a petition for cancellation in Form 8 with prescribed fee to the Controller
of Designs on the following grounds:
- That the design has been previously registered in India or
- That it has been published in India or elsewhere prior to date of registration or
- The design is not new or original or
- Design is not registrable or
- It is not a design under Clause (d) of Section 2.