Design registration in India: Protect your product design
Definition of a Design
Under Section 2(d) of the Designs Act 2001, a design is defined as the features of shape, pattern, configuration, composition, or ornament of lines or colors applied to any article, whether two-dimensional, three-dimensional, or both. These features are applied by an industrial process or any mechanical, manual, or chemical means, and are judged solely by the eye in the finished article. It does not include any principle of construction or a purely mechanical device.
Importance of Design Registration in India
Design registration is crucial for securing legal ownership of innovative designs. Here are some benefits of completing the design registration process in India:
Exclusive Rights: Provides exclusive rights over the new and original design.
Asset Value: Becomes a valuable asset for the owner.
Legal Protection: Allows for legal action in case of infringement by a third party.
Prima Facie Evidence: Acts as prima facie evidence in infringement cases.
Transfer and Licensing: Simplifies the process of selling, transferring, and licensing the design.
Essential Requirements for Design Registration
To be registered and protected under the Design Act, 2000, a design must fulfill the following criteria:
Original and New: The design should not have been used or published previously in any country before the application date.
Distinctiveness: It should be significantly distinguishable from known designs or combinations of known designs.
Non-Scandalous: It should not contain scandalous or obscene matter.
Non-Mechanical: It should not be a mere mechanical contrivance.
Aesthetic Appeal: It should be applied to an article and should appeal to the eye.
Public Order: It should not be contrary to public order or morality.
Eligibility Criteria
Any person, legal representative, or assignee can apply separately or jointly for the registration.
The term “person” includes firms, partnerships, small entities, and corporate bodies.
For NRIs, an agent or legal representative must initiate the Design Registration process in India.
Documents Required for Design Registration
To get a design registered in India, the following documents are required:
Certified copies of the original or extracts from the disclaimer.
Affidavits and declarations.
Other public documents (available on payment of a fee).
Affidavits should be in paragraph form with a declaration of truth and verifiability. The controller may regulate the registration costs according to the fourth schedule.
Protection Given to Design Registration
A registered design is protected for 10 years, extendable by 5 years. This grants the proprietor exclusive rights over the use of the design in the registered class.
Exclusions from Design Registration
Design registration in India does not protect literary or artistic works like books, calendars, stamps, tokens, buildings, structures, and maps. Designs similar to national flags, emblems, or signs of any country are also excluded.
Validity and Restoration of Design Registration
Design registration is valid for 10 years and can be extended for 5 more years with the necessary fees.
If the extension is not done in time, the design registration will lapse but can be restored within one year from the lapse date via Form 4 for non-payment of extension fees.
Process for Design Registration in India
The application to register a design can be filed with the following authorities:
Controller of Designs, Patent Office in Kolkata
Patent Offices in Delhi, Ahmedabad, Mumbai, and Chennai
The application must be filed with Form-1 along with details such as:
Applicant’s name, address, and nationality.
For companies, place of incorporation and legal status.
Applicable fee.
Class and subclass of the article under the Locarno Classification.
Name of the article embodying the design.
Two copies of the design (front, back, top, bottom, and sides views for three-dimensional designs).
Unique features of the design.
Separate applications for each class of registration.
A statement of disclaimer or novelty must be attached to each representation, signed and dated by the applicant or authorized person. After submission, the patent office will examine the application and raise objections if any. Upon clearance of objections, the design will be granted a copyright certificate.
Cancellation of Design Registration
Under Section 10 of the Design Act, 2000, design registration in India can be canceled if:
The design is not original.
Similar designs already exist.
The design has been published in another country prior to registration.
The design does not comply with the characteristics defined in the Design Act.