Industrial Designs (designs) comprises of the shape, pattern, feature or colour or ornament or combination of both of any two dimensional or three dimensional articles having an aesthetic value. Such a design is formed through an industrial process which can be manual, chemical or mechanical or any combination thereof.
The Designs Office has its head quarter in Kolkata that handles technical examination of designs. The branch Offices of the Patent Department are the competent authorities to accept designs applications.
In India, an ordinary or convention application can be applied for registration of industrial designs. Registering a design entitles the proprietor a copyright in the design of that article granting exclusive right over such designs.
Search and clearance
The proprietor inventing a new design can directly move its application for registration. It is not mandatory to conduct a search operation to get a design registered. However, it is vital to identify any form of infringement or barriers that might be involved at a much early stage of registration of such industrial designs.
Clients put in years of hard work and spend an enormous capital to build their brand name by developing a new product. Customers recognize the company name and quality standard based on the aesthetics of the product. However, lack of proper search operations causes delay in getting clearance for their application. In such situations, few companies try to imitate such unregistered product and sell it in the market to gain profits and market share. It not only brings a bad name to the company but also hampers the sale of original products.
It is therefore crucial to conduct a search before proceeding for registration to enjoy an exclusive right over the design. Further, such tangible assets so developed need the supervision of technical experts that counsel through the process of search and obtain clearance for the clients. Intellect Juris has been actively involved in facilitating clients with search and clearance procedure post which filing of a design application is rightfully recommended.
In India, registration of design can be done by filing an application on the prescribed form along with copies of the design (photographs, drawings, tracings computer graphics) and statement of novelty with the prescribed fees. Thereafter, the application is forwarded to the head office in Kolkata that takes care of processing and prosecution. There is no separate copy to be filed with the Indian Patent office for examination. An examination report is issued to which response is required to be filed. If the defects are cleared, application is advertised in the Official Journal. Certificate for Registration is issued which is then notified in the Register of Designs maintained by the Patent Office. The Register of Designs is open for public inspection on the payment of requisite fees.
The duration of the registration or copyright in an industrial design is ten years from the date of registration which is extendable up to five years.
Under the Designs Act, 2000 artistic works such as paintings, sculpture, map or diagram or chart, an engraving or photograph (may or may not possess any artistic quality), architecture work and any other work of artistic craftsmanship cannot be registered as the design.
Similar to patents, exclusive rights on registered designs are limited to a particular national which means registration in India provides protection within Indian jurisdiction. India is a party to the Paris Convention under which any proprietor who files design application in a member state can also file an application in other member countries within the period of six months of that filing date by claiming the priority of the first application.
Designs play a major role in the global dynamic market. Apart from keeping in mind the need and usage of the user, companies also need to survive the competition; hence, it is essential to register the design of an article. It provides protection of the brand as well enhances its commercial viability. Registration also entitles copyright in the design to the registered proprietor.
The Design Act, 2000 provides provision for protection from unauthorized reproduction, acquisition, sale or distribution or performance of a registered design. It also provides for protection against piracy where any third person cannot without license or consent perform the following acts:
- – Imitate the design for the purpose of sale; or
- – Import such article for sale purposes; or
- – Publish or expose such article.
An injunction can be initiated for infringement of a copyright or participating in piracy of a registered design, against any person in a Court not below the District Court. A suit for recovery for damages can also be filed. Tending to matter involving litigation can be extensive and quite complex, therefore, Intellect Juris assist clients with the legal matters and provide customized and rational solution to have a hassle free experience. We have a team of experienced litigators that handle litigation matters pertaining to piracy, infringement of industrial designs and appear in various courts for appeals against the orders of Controller on matters regarding registration, rectification or cancellation of the same.
Industrial designs develop concepts for products such as toys or vehicles, appliances etc. that consider aesthetics, colour, function, usage to give distinctiveness to that product. It involves research, establishment of testing facilities, design centers, experimentation etc. that requires huge investment. Therefore, it is not just essential to register such product but also obtain the optimum value by commercializing the same. Companies design such products with the sole aim to draw benefits and fight competition to gain market share. However, getting proceeds in an appropriate manner needs the mentorship of experienced professionals.
Intellect Juris has a team of experts that are dynamically involved in this process. We also provide assistance on aesthetic properties, safety, ergonomic properties and novelty of designs along with providing coherent opinion on matters related to valuation or commercialization of designs. Intellect Juris plays a strategic advisory role by counseling clients in a wide range of transactions.