Design Means only the features of shape, pattern , or combination of color or line used to create any object in 3D or 2D format using any mechanical or manual procedure that can be viewed through the eyes.
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It doesn’t contain any Trademark or artistic work (under Copyright).
Proprietor of an original or a brand new design is -(1) Author
(2) The person who is able to have the design completed by another person.
(3) The person who obtains a design rights from the designer.
Design Application –
Anyone who claims to be the owner of a brand new or original design may submit a request for the design. The application must be submitted in specified format. It should be sent with four images of the design as well as the prescribed fee. The application can be made by registered mail or by hand.
The class under which the design is to be registered must be specified in the application. The Designs Rules, 2001 prescribes classes under which an application may be preferred. If there is a complaint by Controller , and the Controller requires an amendment to an application, the Controller may forward the list of objections to the applicant. The applicant has to resolve the objections within six months. Design may be registered for any or all articles in a class as per section 6. When a design is registered on an article that falls under a particular classification, an application to register the same design but for any other article within the same classification can be granted to the same applicant.
Say ‘Bottle’ and ‘bag are both in the same classification and if anyone has obtained design under the ‘bottle’ category, he can not be denied from getting the same design in ‘bag’. The Controller has the authority to approve or refuse the request. If the application is denied, the person aggrieved can prefer an appeal to High Court. The Controller must issue a certificate of registration to the applicant and announce the registration date of the design. The Patent Office keeps a register of designs in which every detail of a design are kept. The register is used as the primary evidence of any design element.
Anyone who has filed for any design in the UK or any other convention country may claim the identical design in India. However, this claim must be filed within six months after the date of application in the UK or any other convention country.
Rejection: The controller will not register the design if
* It is not unique or original.
* The publication was published in India or in a foreign country in any format prior to the priority date for the applicant.
* It is not significantly different from known design or their combination
* It contains scandalous and sexually explicit material.
Substitution: Where prior to registration of design:
If a person applies for the registration of any design and * another person is claiming the same design for his because of an agreement, assignment or other reason , then the Controller may make the design registered in the claimant’s name.
The Controller is required to identify the design and produce the agreement or assignment under the terms of which claim was made.
Restoration: – Where renewal fee is not paid and the right is lapsed, it will be deemed to have expired that can be renewed within 1 year, at the time of expiry of the original time period upon the payment of an amount. Application for restoration, as applied by an applicant, will be made public by the Controller.
Marking before Sale:- If the design of an article is registered, a label with the words “Registered” or “Regd.” shall be affixed along with registration number on the item prior to the delivery of that item.
Cancellation of registration:
Anyone who is interested may submit a request to Controller to cancel the registration of a design on the following grounds:
* The design is licensed in India by any other individual
* It was printed in India or in other countries prior to the date of priority.
* This design isn’t original or new.
* It is not within the definition of design. Petition must be filed in duplicate and a copy shall be delivered to the registered proprietor.
The registered proprietor is entitled to file his counter statement within a time frame. The controller shall fix the date for hearing providing 10 days’ notice, and then decide on the issue. Anyone who is unhappy with the Controller’s decision may make an appeal to High Court.
Piracy of Registered Design:
If the registered proprietor does not consent that the act will be considered infringement of the design
* Applying design or imitation to any article sold
* Import any article to be sold
* Publish any article that you believe to be for sale
Any person found guilty of an act in violation of the Act will be fined Rs. A proprietor may be liable for Rs.25,000 The owner may also take action against the District Court for damages or injunctions.
1. Upon payment of a prescribed fee, anyone is entitled to examine any register kept pursuant to the Act at Patent Office.
2. When an application to use a design has been refused, then any details, drawings, photographs or other representation that is related to the application is not open to inspection.
3. Anyone who has the right to use any design due to an transfer or assignment, may submit a request to the Controller, and, upon approval will register him as proprietor of such design.