Design refers to only those characteristics of shape, design , or patterns that are applied to an item in 2D or 3-D format using any manual or mechanical procedure that is able to be evaluated by the eyes.
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It doesn’t contain any trademark or artistic work (under Copyright).
Proprietorship of an original or a brand new design includes -(1) Author
(2) A person who gets the design implemented by another person and
(3) A person who acquires design right from the author.
The application for design may be made by anyone who asserts to be a owner of a new or unique design. It can be submitted to the Controller. An application should be made in a specific format and shall be accompanied by four copies of representations of the design along with the the prescribed fee. The application can be submitted either by hand or registered mail.
The classification under the design that is to become registered must be stated in an application. The Designs Rules, 2001 define the classes under which an application may be preferred. If an objection is raised by Controller , and the Controller requires an amendment to an application, Controller is able to forward the list of objections to the applicant. The applicant is required to remove or resolve the objections within 6 months. Under Section 6. Design is registered for all or any of the articles comprised within a specific class. If design is registered for one article that falls within a particular classification and the application is for the same design on another article within the same classification could be granted.
Say ‘Bottle’ and ‘bag are both in the same classification and if anyone has obtained design under the ‘bottle’ category, he is not barred from obtaining the same design for the ‘bag’. The Controller has the power to grant or reject the request. In the event of a refusal, the party who is displeased may appeal to the High Court. The Controller issues an official certificate of registration to every applicant and will announce that the design is registered. The Patent Office keeps a register of designs, where all details of a design are documented. The register is used as the primary evidence of any design fact.
Anyone who has filed an invention in India or the UK is eligible to apply. This claim has to be filed within six months of the date of filing in the UK or any other convention country.
Rejection: – The controller should not be able to register the design if:
* It is not original or brand new.
* The publication was made in India or in a foreign country prior to the priority date for an applicant
* It is identical to the well-known design or their combination
* It is filled with obscene and obscene material.
Substitution: – Where before the registration of a design:
A person who has applied for the registration of any design, and * Other claimant claims the same design as his design in connection with any arrangement or assignment, then the Controller may proceed to register the design in the name of claimant.
The design must be recognized to the satisfaction of the Controller, and the agreement or assignment shall be drafted under the claims of the claimant have been made.
Restoration: – Where renewal fee is not paid and the right is lapsed, it will be deemed to have expired which can be restored within a year after the expiration date of an original period on payment of the fee. Controller shall publish an application for restoration as it is submitted by the person who applied.
Marking before Sale: Where the design of an item is registered, a label with the words “Registered” or “Regd.” Prior to the release of the product for sale, it must be accompanied by the registration number.
Cancellation of Registration
Anyone interested can make a formal request to the Controller asking for the cancellation of registration of design on following grounds:
* The design is licensed in India by any other person
* This publication was published in India or in another country prior to the date of priority.
* The design is not either original or brand new.
* It is not under the definition of design. Petition must be filed in duplicate and one copy of it shall be sent to the registered proprietor.
The registered proprietor can file his counter statement within a time frame. If a notice is issued within 10 days, the controller will set a date for hearing and make a decision. Any person aggrieved by the decision of the Controller may prefer an appeal to High Court.
Piracy of Registered Design:
Following acts are deemed to be an infringement of design if performed without the permission of the registered proprietor:
* Adding design or imitators to any item sold
* Import any object to be sold
* Consenting to publish any article that is for sale
Anyone found guilty of any act that is in violation of the Act is subject to a fine of the fine of Rs. 25000 to the owner. In addition, the owner has right to sue for recovery of damage or to obtain an injunction from District Court.
1. After payment of a predetermined fee, anyone can look over any register that is maintained by the Act at Patent Office.
2. 2.If a request to design is refused the information, drawing or photograph relating to the application will not be accessible for inspection.
3. Anyone who holds the right to use any design due to any assignment or transmission may submit a request to Controller. The Controller will then register him as the owner.