What is a Design:
Design, emphatically, is an aesthetic parameter of an article or a product, which includes pattern, shape, configuration, ornament or composition of lines or colors and the like.
What constitutes a Design:
- is shape, configuration and pattern, ornamentation or composition of lines or colours, as applied to an article of manufacture, which in the finished form appeals to and is judged solely by the eye;
- may be two or three dimensional or in both forms;
- shall be capable of being a product of industrial process or means, whether manual, mechanical or chemical, separate or combined;
- shall not be a mere mechanical device, mode or principle of construction;
- does not include:
- any trademark, as defined under Section 2(zb) of the Trademarks Act, 1999, or
- any property mark, as defined under Section 479 of the Indian Penal Code, 1860, or
- any artistic work, as defined under Section 2(c) of the Copyright Act, 1957
- A painting, sculpture, drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality.
- Any work of architecture i.e. any building or structure having an artistic character or design or any model for such building or structure.
- Any work of artistic craftsmanship.
Types of Design Application:
There are two types of design applications:
- Ordinary application: Ordinary applications are the applications which do not claim priority from any previously filed application.
- Reciprocity application: Reciprocity applications generally claim priority from an application that was filed previously in a convention country. Such kind of applications must be filed in India within six months, which is a non-extendable period, from the date of filing in convention country.
Classification of Designs:
India follows Locarno classification system for design registration, wherein the articles are classified into 31 classes and a miscellaneous class 99.
Criteria for Novelty and Originality of Design Right:
Design right is only granted when a design of an article is novel or original. A criterion for novelty and originality is defined below as per the law:
- A design shall be considered to be new when it has not been 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 filing date or priority date.
- A design shall be considered new if it is significantly distinguishable from known designs or combination of known designs.
- Disclosure of a design shall not be deemed to be publication of design, sufficient to invalidate the copyright thereof, in the following circumstances:
- Proprietor disclosed the design to any other person before registration, in such circumstances as would make it contrary to good faith for that other person to disclose the design. However, that other person discloses the design in breach of good faith.
- Acceptance of first and confidential order, before registration, for articles bearing a new or original textile design intended for registration.
- A design is not invalidated or prevented from registration:
- if a design or an article to which a design is applied has been exhibited in an exhibition to which the provisions of Section 21 of the Designs Act, 2000 have been extended by the Central Government by notification in the official gazette; or
- if a description of the design is published, during or after the period of holding of such exhibition; or
- if any person:
- exhibits the design or the article to which the design is applied; or
- publishes a description of the design, during or after the period of holding of the exhibition, without the privity or consent of the proprietor.
However, to avail the benefit of this provision, the proprietor shall:
- give a notice in Form-9 to the Controller before exhibiting the design, and
- file the application for registration of design within a period of six months from the date of first exhibiting the design or publishing the description.
Original in relation to a design, means:
- originating from the author of design, and
- includes the cases, which though old in themselves yet are new in their application.
For instance, the figure of Taj Mahal is centuries old. But if a person conceives for the first time, the idea of making a flower vase or an ash tray in the form of figure of Taj Mahal, that may be an original design and shall be registrable.
Design Prosecution and Registration:
Design Registration process involves following steps: