In simple terms, the design is something that is applied to an article and not the article itself.
The design refers to the features of shape which appeal to the eye and should be judged solely by eye and not by a functional consideration.
- Features or upward appearance.
- It includes shape, configuration, pattern, ornament or composition of lines or colors applied to an article.
- Applied to an article by an industrial process or means.
- It means a finished article which appeals to the eye.
1.The design does not include buildings or structures as they are not articles within the definition of designs.
2.It does not include any mode or principle of construction or anything which is in substance a more mechanical device.
3.The designs which have functional utility alone are not designs within the meaning of Section 2(d).
In pursuant to Sec 2(d) –
“Design” means the only feature of shape, configuration, pattern, ornament or composition of lines or colors applied to any article whether in two-dimensional or three-dimensional or in both forms by any Industrial Process whether manual, mechanical, chemical, separate or combined.
It includes the articles which appeal to and are solely judged by the eye.
Section 4: The designs not registrable under the Act –
The following designs are not registrable under the Act as per Sec 4.
- The designs which are not new or original.
- The design has already been disclosed to the public.
- Those designs which are not distinguishable from known designs.
- Those designs which contain scandalous or obscene matters.
The object of registration of a design is to protect new or original designs because sometimes the purchase of articles for use is influenced not only by their practical efficiency but also by their appearance.
The object is to see that the Artesian, Creator or Originator of a design is not deprived of his bonafide reward by others applying it to their goods.
Essential Requirement for registration of designs under the Act:
In order for a design to be registrable under the act must fulfill the following conditions –
- The design should be new or original.
(The word ‘new’ means novelty)
- It should not be previously published anywhere or used in any country before the date of application for registration for registration.
- It should not include any trademark or property mark or artistic work
- It includes the feature of design in the finished article and appeals to and solely judged by eyes.
- The design should relate to the feature of shape, configuration, pattern or ornamentation applied to an article.
It should be new, original, not previously disclosed to the public, design must be distinguishable from the design of others and it should not contain any scandalous or obscene matter.
Persons entitled to seek registration :
Section 5: any person claiming to be proprietor of any new or original design, not previously published in any country which is not contrary to public order or morality can file an application for registration.
According to Section 2(j): proprietor maybe following persons –
- He can be the author of design.
- Any person who has obtained the design from the author for good consideration.
- Any person on whom the design has devolved from the original proprietor.
Procedure for registration of designs :
Section 5 to 10 –
- Application for registration – an application for registration of design may be filed by any person claiming to be the proprietor of any new or original design not previously published.
- Content of application – the application should be accompanied with 4 copies of the design to be protected and it must be duly signed by the applicant.
It should state the class in which the design should be registered and also the article athe design is to be applied.
- Statement of novelty – the applicant has to file a brief statement of the novelty claimed by him for the registration of design.
If the names or representation of living persons appears on design the controller should be furnished with consent from such persons or their legal representatives before proceeding to register the design.
- Acceptance / objections – if the controller finds that the applicant fulfills all the requirements and no objection has been raised, the controller shall register the design. But if the controller is not satisfied he can raise objections and ask the applicant to rectify the application or reject an application.
- Decision of the controller – the applicant or his agent has to remove those objections within 1 month, failing to which the applicant will be deemed to have withdrawn the application.
On acceptance of the design filed in respect of the application the controller shall direct the registration and publication of the application in the official gazette.
When the design is registered the controller grants a certificate of registration to the proprietor of the design.
Under section 6 – any designs can be registered, provided it should fulfill the requirements and conditions.
Section 47 –
- Empowers the central government to make rules for for clarification of articles
- Registration of design shall be done with controller of design
- Before it is registered, it must be examined by the examiner
- Application for registration in the prescribed form. (Form No. 1)
- If the controller refuses the registration, then the appeal can be filed to the High court
- design will be registered as of the date of application for registration i.e., filing date
Register of Design :
- It is a document maintained by the patent office
- Contains the design number, date of filing, name and addresses of the proprietor
- It is open for public inspection
Rights of the proprietor :
- Right to exclusive use of the design
- Right to protect design from piracy
Section 11: Tenure –
Term of a registered design is 15 years.
Generally, the right is granted for a period of 10 years which can be granted for next 5 years by making an application and paying a prescribed fee of ₹ 2,000 to the controller before the expiry of said period.
Section 19: Cancellation of Registration –
Any person interested may file an application for cancellation of a registered design at any time after the design is registered.
Application is made to the controller on the following grounds :
- That the design was previously registered in India
- That the design has been published prior to the date of registration
- The design is not original or new
- The design is not registrable under the Act
- The article is not covered under the definition of design as per section 2(d)
(The power of cancellation of the registration of a design is conferred with the controller.
However, the appeal against the order of the controller lies with the High Court.)
Section 22: Piracy of Registered Designs
any obvious or fraudulent imitation of a design which is already registered without the consent of its proprietor is unlawful.
It also prohibits the import of any material which closely resembles a registered design.
Provided that in case, a civil suit is brought against any piracy of a design, then the compensation shall not exceed Rs. 50,000 for the infringement of one registered design.
Bharat Glass Tube Limited v. Gopal Gas Works Ltd.
The respondents (Gopal Glass Works) had registered their design for diamond-shaped glass sheets and had a certificate of the same. The appellants started using this same design for marketing and these designs were made in collaboration with a German company.
They moved to the Court. The appellants contended that the respondents’ designs were not new since the German company had been using it since 1992 and it was already published in the U.K.
When the matter went to the High Court on appeal then it restored the designs to the respondents. When the matter reached the Supreme Court, it upheld(supported) the decision of the Calcutta High Court.