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Design Act, 2000

Questions & Answers

Q. 1. What does the term 'Design' mean according to the Designs Act, 2000 ?

Ans. In Normal parlance, design means outward appearance of an article visible to the eyes. According to Black Law's Dictionary, Design is a term of art, the giving of a visible conceptions of the mind or invention.

In patent law, design means

i. the drawings or

ii. depiction of an original plan or

iii. conception of a novel pattern, model, shape or configuration to be used

iv. in the manufacturing or textile arts or fine arts, and

v. of decorative or ornamental character

Statutory Definition of the term, 'design' as given in Section 2(d) of the Design Act, 2000 is 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 by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device. Functional aspects of design are not covered in this Act.

Thus it can be said that 'Design' denotes only the features in the form of shape, configuration, pattern or ornament in a finished article to which they are applied by an industrial process. They must appeal to the eye, i.e, must have visual representation and must be capable of being adjudged by a mere look.

Q. 2. What are the Essential Characteristics of Design ?

Ans. On a careful analysis of the Statutory definition and dictionary meaning, it is revealed that design has the following characteristics :

1. Design has 6 Features

1. Design means only features or outward appearance.

2. Designs has 6 features - and include only shape, configuration, pattern or ornament and includes composition of lines or colors.

2. It must be applied to articles

A design is applied to an article and is not an article itself. An article to which a design is applied must be something which is to be delivered to the purchaser as a finished article.

3. Appeal to Eyes

The features in the finished article appeal to and are judged only by the eyes.

The statutory definition and general meaning mandatorily provide that the design must appeal to the eyes and must be judged only through the eyes and should not be judged by functional considerations. There must be a special, peculiar distinctive, significant or striking appearance - something which catches the eyes.

Designs have no relation to the utility value of the article and they are distinct from 'trade mark' or property marks.

Q. 3. What are the types of designs not registrable under the Act ?

Ans. A design which :-

(a) is not new or original; or

(b) has been disclosed to the public any where in India or in any other country by publication in tangible form or by use in any other way prior to the filing date, or where applicable, the priority date of the application for registration; or

(d) comprises or contains scandalous or obscene matter, shall not be registered.

Q. 4. What is meant by an 'article' under the Designs Act, 2000 ?

Ans. Article means any article of manufacture and any substance, artificial, or partly artificial and partly natural; and includes any part of an article capable of being made and sold separately.

Q. 5. What is the object of registration of designs ?

Ans. The Designs Act protects new or original designs so created to be applied or applicable to particular article to be manufactured by industrial process or means. Sometimes purchase of articles for use is influenced not only by their practical efficiency but also by their appearance. The object of design registration, therefore, is to see that the artisan, creator or originator of a design is not deprived of his bonafide reward by others applying it to their goods.

Q. 6. What is the Procedure of Registration of Designs ?

Ans. Designs Act, 2000 lays down the following procedure for the registration of designs and the following steps are involved :

1. Application for registration of designs (S. 5)

2. Substitution of application (S.8)

3. Registration to be in respect of particular article (S.6.)

4. Publication of particulars of registered design (S. 7)

5. Certificate of Registration ( S. 9)

Q. 7. What are the essential requirements for the registration of design under the Designs Act, 2000 ?

Ans. 1. The design should be new or original, not previously published or used in any country before the date of application for registration. The novelty may reside in the application of a known shape or pattern to new subject matter. However, if the design for which application is made does not involve any real mental activity for conception, then registration may not be considered.

2. The design should relate to features of shape, configuration, pattern or ornamentation applied to an article. Thus, designs of industrial plans, layouts and installations are not registrable under the Act.

3. The design should be applied to any article by any industrial process. Normally, designs of artistic nature like painting, sculptures and the like which are not produced in bulk by any industrial process are excluded from registration under the Act. Paintings and sculptures are subject matter of copyright.

4. The features of the designs in the finished article should appeal to and are judged solely by the eye. This implies that the design must appear and should be visible on the finished article, for which it is meant. Thus, any design in the inside arrangement of a box, money purse or almirah may not be considered for registration, as these are generally put in the market in the closed state.

5. Any mode or principle of construction or operation or any thing, which, in substance is a mere mechanical device, would not qualify for registrable design. For instance, a key having its novelty only in the shape of its corrugation or bend at the portion intended to engage with levers inside the lock associated with, cannot be registered as a design under the Act. However, when any design suggests any mode or principle of construction or mechanical or other action of a mechanism, a suitable disclaimer in respect thereof is required to be inserted on its representation, provided there are other registrable features in the design.

6. The design should not include any trade mark or property mark or artistic work.

Q. 8. What is a Register of Designs ?

Ans. The Register of Designs is a document maintained by the Patent Office, Kolkata as a statutory requirement. It contains the design number, date of filing and reciprocity date (if any), name and address of proprietor and such other matters as would affect the validity of proprietorship of the design and it is open for public inspection on payment of prescribed fee and extract from register may also be obtained on request with the prescribed fee.

Q. 9. What is the duration of the registration of a design ? Can it be extended ?

Ans. The term of a registered design is 15 years. Initially the right is granted for a period of 10 years, which can be extended, by another 5 years by making an application and paying a fee of Rs. 2000/- to the Controller before the expiry of initial 10 years period. The proprietor of design may make application for such extension as soon as the design is registered.

Q. 10. Can an applicant file the application for registration of design himself ?

Ans. The application for registration of design can be filed by the applicant himself or through a professional person (i.e. patent agent, legal practitioner). However, applicants not residents of India have to file applications through an agent residing in India.

Q. 11. Can appeal for cancellation of the registration of a design be made ? What are the grounds for cancellation ?

Ans. The registration of a design may be cancelled at any time after the registration of design on a petition for cancellation to the Controller of Designs on the following grounds :

1. That the design has been previously registered in India;

2. That it has been published in India or elsewhere prior to the date of registration;

3. That the design is not new or original;

4. That the design is not registrable;

5. That it is not a design under Clause (d) of Section 2.

Q. 12. What is piracy of registered design and what is the penalty for it ?

Ans. Piracy means unauthorized copying or application of a design to the articles with respect to which the design is registered during the existence of their copy right.

Section 22 of the Act deals with the various provisions relating to piracy of Registered designs.

According to S. 22 :

For the purpose of sale of any article, it shall not be lawful for any person : without the written consent or license of the registered proprietor of the existing design

(a) to apply registered design to any article, or any fraudulent or obvious imitation thereof, or

(b) to import any article belonging to the class of already registered design and to which the design or any fraudulent or obvious imitation thereof has been applied; or

(c) to publish or expose an article for which it is known that the registered design or any fraudulent or obvious imitation thereof has been applied.

Remedies in case of Piracy of Registered Designs :

According to S. 22, In case of piracy of a registered design, a registered proprietor may claim from the pirator :

(a) a sum not exceeding twenty-five thousand rupees recoverable as a contract debt, or

(b) to institute a suit in the Court of District Judge

i. for the recovery of damages for the piracy

ii. for an injunction against piracy to restrain the pirator.

However, the total sum recoverable in respect of any one design under clause shall not exceed fifty thousand rupees.