Protect Your Industrial Design In India

By Author: Unimarks
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Statutory regulations governing the registration and protection of designs are laid down in the Designs Act, 2000, and the Designs Rules, 2014. As per the Act, design means and includes only those related to shape, color, pattern, configuration, etc. In short, designs under the Design Act,2000 deal with the product’s aesthetic features and not a functional element of the product.

Customers tend to buy those products which are appealing, attractive, and aesthetic. The product’s appearance decides its marketability in the industry; that is why producers concentrate more on the looks of the product to make it more eye appealing. When a lot of hard work, brain work, and ideas are put into designing the product features, naturally, we have to protect them from being used without the permission of the true owner of the design and confer rights related to usage to the right holders of the design.

INDUSTRIAL DESIGN — MEANING AND DEFINITION

Section 2(d) of the Designs Act defined the term “design” as features of shape, patterns, configurations, ornamentations, compositions of lines and colors, anything ...
... that can be reduced to 2-d or 3-d format and are appealing to the eyes of any common prudent man. It also applies to any article processed by any process- manual, mechanical, chemical, or combined, which are solely judged by the eyes and not related to the mechanism or process used to create the product. To get protection under the Designs Act,2000, the following essentials are required to be fulfilled:

DOCUMENTS REQUIRED FOR REGISTRATION:

The documents required for design registration are very minimum and are required at the time of submission of the application. Here is a checklist of the necessary documents for filing the application along with FORM 1 Application:

Personal details of the applicant- name, nationality, and address of the applicant

In the case of foreign applicants, it is mandatory to provide the address of service in India.

To be filed along with the application, and no time extension will be provided for the same.

Visual representation of the design in 360-degree view — two copies To be filed along with the application, and no time extension will be provided for the same.

Power of attorney To be filed with the application or within one month from the date of filing.

Priority application- certified copy (if the same design is registered in any convention country)To be filed with the application or within one month from the date of filing.

A brief statement of novelty is endorsed in each design. To be filed along with the application, and no time extension will be provided for the same.

Details of the class under which design is to be registered Additional documents based on each case

PROCEDURE OF REGISTRATION:

The procedure for a design application is like the procedure of registration of a trademark or copyrights. A quick overview of the process is given below:

Filing of the Application– The Applicant must submit form 1 application with specified class and the documents and prescribed fees to the design office.

There are two types of applications:

1. Ordinary application- where the applicant can make no priority claim
2. Reciprocity application- this application allows the application to claim priority filed previously in a convention country. To claim priority, the applicant must apply within six months, and no grace period shall be allowed for the same. The priority documents have to be duly certified by the official Chief or head of the organization.

Mode of registration:

1. Manual filing: The applicant can either go for manual filing at any of the patent offices located in Delhi, Mumbai, Chennai, and Kolkata.
2. E-filing: The registry now provides an option of e-filing directly through the website.

Initial processing of the application: On receipt of an application, the Office accords a date and serial number to the application. This serial number, upon registration, becomes the registration number of the design.

Examination of the application: after the allotment of the serial number, the application is sent for formality check to the Controller of Patents and Designs. The following items are checked in this stage:

1. The application is in the prescribed format?
2. The prescribed fee has been paid?
3. The name, address, and nationality of the applicant are mentioned?
4. Address for service is given in the application form?
5. Declaration of proprietorship is given in the application form?
6. Representation sheet is in a manner as prescribed in Rule 14?
7. power of authority, if applicable, is filed?

In the case of reciprocity application:

1. The Applicant applied within the prescribed time?
2. The priority document was filed at the time of filing? If not, whether the priority document was filed within the extendable period of three months along with the prescribed form and fees?
3. The application was filed by the same applicant? If not, whether the assignment document has been filed?

If no defects are found in the application, the application is sent for substantive examination.

In case any defects are found in the examination, a detailed report of the defects is sent to the applicant. The applicant has to comply with the defects within three months from the date of the objection, failing to which the application shall stand abandoned.

Substantive examination: After the formality check, the next step is the substantive examination, where the Controller shall check whether the design under consideration is:

1. A ” Design” under the Act?
2. New or original?
3. Prejudicial to public order or morality?
4. Prejudicial to the security of India?

Publication and advertising in the Journal: If the Controller believes that the concerned design is similar to any other design registered or does not fall under the registrable design category, the communication shall be sent to the application to reply to the examination report. Upon full affirmation that the design is registrable as per the statutory regulations and without any defects, the application will be accepted and advertised in the patent journal.

Objection: If no objections are received, the design is accepted and registered. The design’s acceptance shall be recorded in the Register, and a registration certificate will be given to the applicant.

If any objections are raised, then the procedure of objection shall be followed.

Term of registration: A design is valid for ten years from the date of registration and can be renewed for a further period of five years.

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