Design Registration in India

What do you mean by Design?

Any shape, pattern, ornament, configuration or composition of colors & lines are features of a design. A design can be two dimensional, three dimensional or both the forms. It does not consist of any trademark, property mark or artistic work. These are intellectual property rights that protects the visual presentation of the objects.

What are the minimum requirements to register a Design?

There are certain specific features needed for the design to get registered. The minimum requirements are as follows;

• It is very important for the design to be new or original & distinctive in nature
• The design needs to be absolutely fresh and not used in any publication or it must not have an exposure to public.
• It is required for a thorough research based on the existing designs as already registered designs cannot be used.
• It should not have obscene, controversial or offending content.
• It is not to have a mechanical & technical fabrication.
• The design is to be applied to an article and most importantly needs to be appealing.
• The Design must not be against public order or morality.

What is the validity of the Design?

The validity of the design registration is initially for ten years after which it needs to be renewed. In order to retain the rights the design is to be renewed which extends the period for more five years. The fee for extension is very important , and if you fail to pay the fee within the renewal period then the rights will be ceased. However, you still have a chance to restore your design if you file the restoration with the fee within a year from the date of cessation in the prescribed manner. 

Is there any classification for a Design registration?

Yes, in order to provide a systematic registration the Designs are categorized in separate classes. According to the Locarno Agreement, the international classification of the Industrial Designs are distributed in classes under the Design Rule 2001 & as in (Amendment) Rules 2008 . The classification of design is based upon the function of the classification of goods. The classes are further divided into sub-classes, which are majorly function oriented. There are specific cases where in the function of the article is required to be mentioned along with the name of the article in the application form which is needed for the classification.

What do you mean by piracy of a Design?

This is a case which means that an application of a design or similar design to any article and used for certain purposes without the consent of the actual owner, who is already registered is called Piracy of a design. Publishing of such articles or exposing terms for business with knowledge of the illegal and unauthorized application of the design to them certainly is involved in piracy of the design.

Who can assist in registration of Design?

It is not important for the applicant to register the design, an application for registration of design can also be filed by the help of attorneys.

What are the benefits of Design Registration?

The benefits of a Design Registration are as follows;

• The registration of a design permits the registered proprietor to apply the design in the class wherein the design has been registered.
• The protection of an intellectual property is solely responsibility of the registered proprietor. Incase his right is infringed by any person then registration of the design gives him the right to sue for infringement.
• The owner of the design is permitted to sell/transfer the design as its his legal property in return of some consideration & royalty.

Who can apply for a registration of a Design?

A person who has an unique design to be registered or a legal representative or the assignee who is given the right/ownership of the design can individually or jointly apply for the registration of a Design. It can also be a firm, partnership and a body corporate who claims to be the owner of a design. The agent can also file an application in which PoA (Power of Attorney) is required to be filed.

What are the exclusions under the Design Act

The Design acts does not permit the following elements to be registered;

• The printed documents & files like books, calendars, certificates, forms-and other documents, dressmaking patterns, greeting
• Cards, leaflets, medals and postcard, plan cards, stamps.
• Cartoons, labels, tokens, cards.
• It does not include any process, principle or mode of construction of an article.
• Any kind of mechanical fabrication.
• Architectural constructions like buildings and structures.
• Variations commonly used in the trade.
• Parts of articles not manufactured and sold separately
• Workshop alterations of components of an Assembly.
• Similar article with small change in size of article.
• It cannot include flags, emblems or signs of any country.
• It also excludes any kind of layout designs of integrated circuits.

When is the cancellation of a registered Design approved?

However, there are specific grounds on which the application of cancellation is admitted;

• The design should be previously registered in India.
• It can be cancelled if the design is published in India or any other country before the date of registration.
• The design is unique, exclusive, original and one of its kind.
• In case the design is not registrable under the Act.
• It can be also for the statutory time for it is not a design as defined under of section 2(d).

What is the penalty for the piracy of a registered Design?

Incase of Piracy of a design, the person is liable for every offence to pay a hefty sum of about Rs. 25,000/- to the registered proprietor and it can extend to a maximum of Rs. 50,000/- recoverable as contract debt in respect of any one design. However, the total sum of the penalty shall not exceed Rs. 50,000/-as contract debt as stated under Section 22(2)(a). The suit for infringement, recovery of damage etc is not required to be filed in any court below the court of District Judge.

How one can know whether registration exist in respect of any design?

To ascertain whether registration exists in respect of a design, the applicant is needed to make a request to the Patent Office. Incase an individual is aware about the serial number of the registered design then the request is to be made on Form 6, and if its not known then Form 7. The requests are made individually and applicable only for one design.