Register your Industrial Design

Industrial Design refers to creative activity which results in the ornamental or formal appearance of a product. India is a member country of the Paris Convention for Protection of Industrial Property, 1883 and India introduced the ‘Design Act, 2000’ to protect commercial and industrial designs.

In today’s time, it is very essential to make your product really special, catchy and amazingly designed! In the era of cut-throat competition, when every brand is coming up with some excellent products every day, every other brand is working on the external packaging, shape of goods, packaging, design of goods etc. Sometimes a particular shape which stands a way diff erent than the existing product designs becomes an identity of the brand or a particular product e.g. a Fanta bottle, automobile products of luxury companies, iPhones and iPads etc.

It is always diffi cult to map the desires and requirements of consumers, sometimes companies also bring some limited-edition products to accelerate the market and to keep the brand popularity alive, product packaging, shape of the product container, shape of the external packaging is the important factor for product sale and customer delight. Customer delight is a very wide term but if you analyze the customer demands you will come to a conclusion that ‘Shape of goods or Product design’ is the main demand from consumer, customers are always looking for catchy products with ultimate designs.

Have you ever thought on this? Whether these designs are protected by law or not? Why can’t brands copy others’ designs? This is because, the designs are also protected under the law and specifi cally under the ‘Design Act, 2000’.

Industrial Design refers to creative activity which results in the ornamental or formal appearance of a product. It is to be noted that India is also a member country of the Paris Convention for Protection of Industrial Property, 1883 under the arrangement of which a design from a member country is protected under the (Indian) Design Act, 2000 in a similar manner as an Indian design is protected.

However, registration of a design in India is a pre-condition for claiming and enforcing any right under the (Indian) Design Act, 2000. Protection to any foreign Industrial Design is subject to a precondition i.e. any design which is registered in a convention country, must be applied for registration in India within a period of 6 months from the date of the fi rst convention application, i.e. the fi rst application in the foreign country. The advantage of fi ling an application within a period of six months from the date of fi rst application is that the Indian application will be treated to have been fi led on the same date when the fi rst application for the registration of design was fi led.

What is mean by design?

A Design refers to the features of shape, confi guration, pattern, ornamentation or composition of lines or colours applied to any article, whether in two or three dimensional (or both) forms. This may be applied by any industrial process or means (manual, mechanical or chemical) separately or by a combined process, which in the fi nished article appeals to and judged solely by the eye. Design does not include any mode or principle of construction or anything which is a mere mechanical device. It also does not include any trade mark or any artistic work. The registration of a design confers upon the registered proprietor the exclusive right to apply a design to the article in the class in which the design has been registered.

Why one should register a design?

A registered proprietor of the design is entitled for the protection of his intellectual property. He can take step against infringement, if his right is infringed by any person. He can license or sell his design as legal property for a consideration or royalty. Registration initially confers this right for ten years from the date of registration. It is renewable for a further period of fi ve years. If the fee for extension is not paid for the further period of registration within the period of initial registration, this right will cease. There is provision for the restoration of a lapsed design if the application for restoration is fi led within one year from the date of cessation in the prescribed manner.

Essential requirements of registration:

A design should –

  1. be new or original
  2. not been disclosed to the public anywhere by publication in tangible from or by use or in any other way prior to the fi lling date, or where applicable, the priority date of the application for registration.
  3. be signifi cantly distinguishable from known designs or combination of known designs
  4. not comprise or contain scandalous or obscene matter
  5. not be a mere mechanical contrivance
  6. be applied to an article and should appeal to the eye
  7. not be contrary to public order or morality
  8. not be prejudicial to the security of India

Exclusions from the scope of design registration –

Designs that are primarily literary or artistic character are not protected under the Designs Act.

 

These include:

  1. Books, calendars, certifi cates, forms and other documents, dressmaking patterns, greeting cards, leafl ets, maps and plan cards, postcards, stamps, medals.
  2. Labels, tokens, cards, cartoons.
  3. Any principle or mode of construction of an article.
  4. Mere mechanical contrivance
  5. Buildings and structures.
  6. Parts of articles not manufactured and sold separately.
  7. Variations commonly used in the trade.
  8. Mere workshop alterations of components of an assembly
  9. Mere change in size of article.
  10. Flags, emblems or signs of any country.
  11. Layout designs of integrated circuits.

Who can apply for registration of a design?

Any person or the legal representative or the assignee can apply separately or jointly for the registration of a design. The term ‘person’ includes fi rm, partnership, small entity and a corporate. An application may also be fi led through an agent in which case a power of attorney is required to be fi led.

Duration of protection of a design

Initially a protection of 10 years is given to the proprietor of a registered design with regard to exclusive rights to sell, make or import the articles and initiating an action against an infringer. This initial period of 10 years can be further extended by a period of 5 years on the payment of renewal fees. In India the maximum validity of a registration under the (Indian) Design Act, 2000 can be 15 years.

Advantages of design registration

A design is what makes an article attractive and appealing. Hence, it adds to the commercial value of a product and increases its marketability.

When a design is protected, the owner i.e. the person or entity that has registered the design is assured an exclusive right against unauthorized copying or imitation of the design by third parties. This helps to ensure that the design of the products is exclusive to the owner and the customer can at once identify the design of the product as that of the owner.