In this article, Tushar Verma, currently enrolled in the Certification in Intellectual Property Law at LawSikho discusses the salient features of the Design Act 2000
Introduction
In our day to day life, we encounter various objects which we can recognize by observing their design. Products which are artistically designed can grab the attention of the customer the moment they see it. These designs can take the form of Art, drawings, graphics etc. These designs may be created by professionals which includes engineered designs or architectures blueprints for any property, interior designs etc. The term ‘design’ does not include any procedures such as mode of construction of an article. Earlier this Act was governed by Design Act, 1911. So as to bring the Design Act at par with International Law enactment of the new act came into being. Presently, design laws are maintained by the Design Act, 2000.
What is design all about?
The term ‘Design’ under Design Act is defined as :
“Features of shape, any configuration, pattern, ornament or composition of lines or colours which is applied to Two dimensional or three dimensional or in both the forms using any process including manual, chemical or mechanical, separate or combined which in the finished article appeal to or judged solely by the eye.”
It neither includes any mode of construction nor any trademark as defined under clause (v) of sub-section (1) of section 2 of Trade and Merchandise Marks Act, 1958. It even does not includes property mark as defined in section 479 of the Indian Penal Code or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957.[1]
With reference to the Design Act, 2000 what are articles?
Under the provisions of Design Act, 2000, any manufactured object is known to be “article”. The object can be of any substance irrespective of artificial or natural. The article must be capable of being made and sold separately.
Essential Requirements for registration
Novelty and originality
A design can be considered for registration only if they are unique. A combination of previously registered design can also be considered only if the combination produces new visuals. In a case Hello Mineral Water PVT. LTD. v. Thermoking California Pure, a design of water dispenser having a cylindrical shape was not considered as new on the grounds that mere shape and form is not sufficient to prove novelty.
Design must be unique, a Prior publication is not acceptable
The design must not be a published one. If the design is already published than the design is not eligible for the publication. There should not be any tangible copy available already in the market if you are seeking registration of the design that is in digital format. Displaying of the design in any fashion show by the creator is the publication of that design. Secret and private use of the design does not amount to the publication and can be used for the experimental purpose.
It was held in Kemp and company v. Prima Plastics LTD. that disclosure of design by the proprietor to any third person cannot be claimed as publication provided that the disclosure must be in good faith.
Making application of design to an Article
The applicability of the design should be to the article itself. It can be informed of a three-dimensional figure. There are two-dimensional figures also included in this act i.e any painting or any graffiti on the walls or print on the bedsheets.
The design must not be contrary to the order and morality
The design must be registrable under the Design Act, 2000. It must not be prohibited by the Government of India or any institution so authorized. The design must be capable of registering under the Section 5 of this act. The design which can cause a breach of peace and may hurt the sentiments of the people may not be allowed to get register.
What is to be considered to register under this Act?
Looking forward to registering a design under Design Act, 2000, one must ensure following features in your design which are:
- The work must be capable of selling and made separately.
- It must be original and new to the market. The plagiarised design will not be considered under this act.
- It should be purely distinguishable from other designs.
- It must not relate to obscenity or any material which is inappropriate.
Rights of the proprietor of the design
When a proprietor applies for the registration of the design he shall automatically get ‘copyrights in design’ for the period of 10 years from the date of registration. This period can be extended if the proprietor wants to continue with the design. The Design Act should not be confused with the Copyrights act because there are many products which can be registered under both the acts but their remedies cannot be sought in both the acts individually.
Who is entitled to seek Registration?
As per the provisions of Design Act, 2000 any proprietor who is seeking registration of a design which is original and unpublished previously in any country which does not seems to be contrary to any law and order of that country can file an application for registration. A proprietor as per Section 2(j) includes that person who
- is the author of that design
- acquired design for a valid consideration and
- Any person to whom the design has been devolved from the original proprietor.
In case there is more than one author than the design must be applied by the joint authors only.
Importance of design
A product design is someone’s intellect which he/she uses to pen down a marvellous creativity which afterwards becomes a great product. The design of a product is having an everlasting effect on the mind of the consumer. A product is recognizable in the dark also due to its unique design. A product design is if attractive adds value from the business point of view. Thus, so as to protect the design from infringement by their competitor’s owners must opt for seeking design protection. A mechanism is pre-decided by the Government of India for its protection and regulation.
Infringement of designs
The design is also prone to infringement which means there may be chances when your competitor will try to copy your designs. In case of infringement of the design, the owner can claim damages from the infringer and also apply for an injunction on the further use of design. In case there is any question as to ascertainment of infringement, the court will directly look for the design from the point of view of the average customer. Basically, the court tries to look whether there is any obvious confusion or some material facts are there in the minds of customers.
Salient features of Design Act 2000
- As India is a member of World trade organization, Paris convention and also signed the Patent Cooperation Treaty which allows the members of these conventions can claim priority rights.
- Under Design Act, 2000 Locarno classification has been adopted where the classification is totally based on the subject matter so of design. Under previous provisions, classification is only made on the basis of the material the subject matter is made of.
- With the introduction of “ absolute novelty”, Novelty can be judged on the basis of the prior publication of the article not only in India but also in other countries.
- Restoration of design is possible as per the new law which was omitted in the previous laws. Now you can restore registration of your design.
- Under new provisions, power has been given to district court to transfer cases to the high court where the court is having jurisdiction. This is only possible if the person is challenging the validity of the design registration.
- Incorporates the provisions regarding delegation of powers of the controller to other controllers and duty of examiner.
- Under the new provision, the quantum of punishment is also enhanced in case of infringement.
- It revokes the secrecy of two years of a registered design.
- It contains provisions for the avoidance of certain restrictive conditions so as to regulate anti-competitive practices within contractual licenses.
- The registration is taken into consideration when it is brought within the domain of public records that too physically. Anyone can inspect the records and get a certified copy of it.
- It contains provisions for substitution of the application before registering the design.
Conclusion
Design Act, 2000 brings about many changes which are observed in the features. When a developer develop something for example If an architect develops the structure of a building there is an expectation that my structure will not be infringed. Many designs are capable of providing the author with copyrights also. In that case infringement of both cannot be claimed separately. The owner must have to choose which is more beneficial. High intellects are involved in making a design look good and have an everlasting impact. Government come up with a great policy of protecting designs. Moreover, these designs can also have a negative impact on the value of the business if infringed. A good design is always remembered.
[1] Design Act 2000
The post Salient features of the Design Act, 2000 appeared first on iPleaders.