Note on Designs Registration in India

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INDUSTRIAL DESIGNS INDIA The term design is defined in Section 2 (d) of the Designs Act, 2000. This definition reads as follows:

design means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely be the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958), or property mark as defined in section 479 of the Indian Penal Code (45 of 1860) or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957 (14 of 1957).

To summarize the requirements laid down in the definition above, any person (including a partnership firm or a body corporate) claiming to be the proprietor of the design can apply for its registration so long as the design is:

New or original; Not previously published in any country; Reproducible by industrial means; Not contrary to public order or morality; Significantly distinguishable from known designs or combination of known designs; Not comprised of or containing scandalous or obscene matter; Appealing to the eye; and Not including anything that is in substance a mere mechanical device.

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RELEVANT FACTS PRACTICE & PROCEDURE-DESIGNS IN INDIA An industrial design is primarily for aesthetic features. They do not protect any technical features of an article. Industrial design protection precludes any trademark or artistic work.

Based upon the finished article concept, the Indian Patent Office follows a very rigid practice of not permitting a single design application to include views of more than a single embodiment of a particular design for an article. Additionally, views showing an article in more than one operational position are not permitted in one and the same application. Thus, cover open and cover shut views will not be allowed in a single application.

Importantly, the article must be shown in only a single operative position. Views showing cover on and cover off positions will not be permitted in a single application. If such views are included, the application will be held to cover a plurality of designs and one set will need to be deleted. This becomes significant when one appreciates that Indian design law does not contain provision for divisional.

The representations filed may be in the form of photographs, tracing or drawings. Most applicants prefer line drawings but under the practice which has evolved, the drawings are required to show the article in the form in which it appears to the eye and hatching or shading or discreet lines are always require to be removed. Contrary to the US practice, no part of the article should be delineated in dotted or broken lines.

It is also a part of Indian patent practice not to register designs the shape and configuration of which are determined purely by the function of article performs. In other words, something which is mere mechanical device cannot be registered as a design in India.

The registration of an industrial design in India gives the proprietor an exclusive right to sell, import and apply it to any article. Further, Design rights are granted on a country-by-country basis, with an Indian registration the Design will have protection only in India. If the rights holder

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wishes to protect a design in other countries, then it will have to seek protection in each country separately under the relevant law.

India follows the system of "first-to-file." Therefore, it is imperative that a rights holder applies for the registration of its design at the earliest opportunity to ensure that no other person can claim prior rights to the design. Furthermore, an application for design in India has to be filed before publication or any kind of public disclosure of such design, in order to be eligible for registration.

LIST OF CLASSES

Class 1 Foodstuffs Class 2 Articles of Clothing And Haberdashery Class 3 Travel Goods, Cases, Parasols and Personal Belongings, Not Elsewhere Specified Class 4 Brushware Class 5 Textile Piece goods, Artificial and Natural Sheet Material Class 6 Furnishing Class 7 Household Goods, Not Elsewhere Specified Class 8 Tools & Hardware Class 9 Packages and Containers for The Transport Or Handling Of Goods Class 10 Clocks and Watches And Other Measuring Instruments, Checking and Signalling Instruments Class 11 Articles of Adornment Class 12 Means of Transport or Hoisting Class 13 Equipment for Production, Distribution or Transformation of Electricity Class 14 Recording, Communication or Information Retrieval Equipment Class 15 Machines, Not Elsewhere Specified Class 16 Photographic, Cinematographic and Optical Apparatus Class 17 Musical Instruments Class 18 Printing and Office Machinery

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Class 19 Stationery and Office Equipment, Artists' and Teaching Materials Class 20 Sales and Advertising Equipment, Signs Class 21 Games, Toys, Tents and Sports Goods Class 22 Arms, Pyrotechnic Articles, Articles for Hunting, Fishing and Pest Killing Class 23 Fluid Distribution Equipments, Sanitary, Heating, Ventilation and Air-Conditioning Equipment, Solid Fuel Class 24 Medical and Laboratory Equipments Class 25 Building Units and Construction Elements Class 26 Lighting Apparatus Class 27 Tobacco and Smokers Supplies Class 28 Pharmaceutical and Cosmetic Products, Toilet Articles and Apparatus Class 29 Devices and Equipment Against Fire Hazards, for Accident Prevention and for Rescue Class 30 Articles for the care and handling of animals Class 31 Machines and appliances for preparing food or drink not elsewhere specified Class 32 Miscellaneous

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Designs Prosecution Flow Chart

Application by proprietor of a new design to the Controller indicating class of goods/articles in the same class

Examination for registerability

If any objection conveyed to the applicant?

Removal of Objection

N
Entry of the design in the register

Issue of a certificate of Registration

Publication of the application and the representation of the article on which the design is to be applied in the official gazette

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