Who can apply for and own a design?
Any person claiming to be the owner of any new or original design may apply for design registration. Apart from a natural person, any company or association or body of individuals, whether incorporated or not, society, partnership firm can also own a design in India.Scope
What may and may not be protected?
According to Indian design law, a ‘design’ is defined as “the features of shape, configuration, pattern or ornament or composition of lines or colour or combination thereof applied to any article whether 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 by the eye”. A design does not include any mode or principle of construction or anything which is in substance a mere mechanical device. Thus, any trademark or property mark as defined under Section 479 of the Indian Penal Code, 1860 or any artistic work as defined in Section 2(c) of the Copyright Act, 1957 does not fall under the scope of design.
In order to protect a design, it must be new and original. ‘New’ in this context means that the subject design must not have been previously published anywhere in India or any other country in a tangible form or by use or in any other way. ‘Original’ implies that the design should originate from the author of the design, but as a matter of fact, those old designs which are new in terms of application are also considered original.
Indian design law protects any new and original design that is capable of being applied to an article. The feature becomes eligible for registration, provided that it:
- is new or original;
- has not been disclosed by prior publication or use or in any other way;
- is sufficiently distinguishable from known designs or their combination; and
- contains no scandalous or obscene matter and is not contrary to public order or morality.
In order to protect part of an article, the applicant must ensure that each part of such article meets the requisite condition of being “capable of being made and sold separately”. If part of the article is capable of being made and sold separately and can be judged solely by eye, design protection can be obtained for such part.
Under Indian design law, a design cannot be registered that:
- is not new or original;
- has been disclosed to the public anywhere in India or in any other country by publication in tangible form or by use or in any other way prior to the filing date, or where applicable, the priority date of the application for registration;
- is not significantly distinguishable from known designs or combination of known designs;
- comprises or contains scandalous or obscene matter;
- includes any mode or principle of construction or operation or anything which is in substance a mere mechanical device; and
- is a trademark, property mark or an artistic work.
What are the costs involved in registration?
It depends on several factors, such as whether there are objections or need for hearing in prosecution of application. However, the average cost of obtaining a design registration in India can be between US$500 and US$800.Grace period
Is there a grace period for filings?
Under the Indian design law, a six-month grace period is available but is limited to the disclosure made in a notified exhibition or trade show and where a prior notice of such public disclosure is given to the Controller of Designs in India. Prior publication without notification to the Controller of Designs would hit the novelty of the proposed Indian design application and the grace period will not be available.
Law stated dateCorrect on:
Give the date on which the information above is accurate.
16 November 2020.