case study on design act 2000

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Recap 2021 – Indian Design Case Laws

In this post, we bring to you few Design Cases decided by Indian Courts in the year 2021:-

M/S Kamdhenu Limited v. M/S Aashiana Rolling Mills Ltd

In a case involving a registered design pertaining to double rib pattern of steel rods, the Delhi High Court cancelled the registration summarily stating that there is no need for a full trial. The Court came to this conclusion primarily based on the fact that the design that formed part of the registration was published as part of British, ISO and other standards before the filing date of the design application. Based on the evidence on record, the Court stated that the application for cancellation of the Registered Design has a high likelihood of success, and that no further evidence needs to be led in this respect. While stating so, the Court pointed out that a strong prima facie case at the interim level does not necessarily give rise to a high likelihood of success.

Citation: M/S Kamdhenu Limited vs M/S Aashiana Rolling Mills Ltd, Decided by Delhi High Court on 12 May, 2021, available at: https://indiankanoon.org/doc/45300504/ , accessed on 17th November, 2021

E.N. Project and Engineering and Ors… vs Kvt Electrical Project and Ors.

In this case, the Plaintiffs, manufacturers of ‘cable trays’ filed a suit for infringement of their registered design. The Sessions Court granted an ad-interim ex-parte injunction in their favour. The Defendant filed an interim application seeking vacation of the order, alleging the registration to be male fide as the design was generic and lacked originality. The Court pointed out that, once registration is granted the onus shifts to the challenger to demonstrate prior existence of the design by way of prior publication. While applying the ocular test the Court noted that the Defendants’ cable tray was an apparent imitation of the Plaintiffs’ registered design and found the Defendants’ adoption to be dishonest. The Defendants failed to satisfy the Court on equity. The Court disposed the application and affirmed the injunction order to be absolute.

Citation: In the case of E.N. Project and Engineering… vs Kvt Electrical Project And… passed by Delhi High Court on 12th October, 2021, available at: http://indiankanoon.org/doc/146680473/ last visited on 17th November, 2021

Relaxo Footwears Limited vs Aqualite Industries Pvt Limited

In this case the Plaintiff, the largest footwear producer in India, filed an application seeking ex-parte injunction against the Defendant. The Plaintiff alleged that the Defendant imitated Plaintiff’s products/design/trade dress/get up. The Court analyzed the case at hand from the purview of Sections 2, 4, 5, 19, 22 of the Designs Act, 2000 and various cases. It noted that mere registration of the design would not entitle a registrant of the design to claim protection. It would always be open to the Defendant to plead and set up a defence of lack of novelty or existence of prior art. The Court stated that the test in deciding such matters was: “judged solely by the eye are the essential features present or are the two substantially different”. The Court compared their products and concluded that prima facie the Defendant had copied Plaintiff’s design. It was brought to the Court’s notice that although the Defendant alleged lack of originality in Plaintiff’s design, it had applied for registration of a similar design. The Court stated that the issue of existence of prior art would be considered after evidence had been led. The Plaintiff had made out a prima facie case and the balance of convenience was in its favour, and hence, an interim injunction was granted against the Defendant.

Citation: In the case of Relaxo Footwears Limited vs Aqualite Industries Pvt Limited passed by Delhi High Court on 8th October, 2021, available at: http://indiankanoon.org/doc/41801560/ last visited on 17th November, 2021

Crompton Greaves Consumer Electricals Ltd. v. CG Power and Industrial Solutions Ltd.,

The Plaintiff, Crompton Greaves Consumer Electricals Ltd. (CGCEL) approached the court regarding passing off/infringement of their registered design for submersible centrifugal pumps by the Defendant, CG Power and Industrial Solutions Ltd. (CGPISL) who copied the design and structure of the pump as well as used the trade name ‘CROMPTON’ or ‘CROMPTON GREAVES’ while advertising for the infringing pumps.

The Plaintiff sent a notice, post which the Defendant agreed to inform its dealers/channel partners to cease the use of the words ‘CROMPTON’ and/or ‘CROMPTON GREAVES’ on the products, or the relevant promotional material, and destroy any such packing or promotional material which infringes the rights of the Plaintiff. However, despite such communication, the products still visible on websites such as amazon.in or on Google searches – where the Defendant’s products were being sold with the Plaintiff’s trade name. More so, the Plaintiff alleged that there were communications being circulated in the market by the Defendant, deliberately showing association with the Plaintiff’s reputation.

The Defendant asserted that it claimed no right on the concerned trade names, and reaffirmed the Court that they would notify their channel partners once again to cease activities which infringed the rights of the Plaintiff, in any manner, including advertising on e-commerce websites.

Citation: Crompton Greaves Consumer Electricals Ltd. v. CG Power and Industrial Solutions Ltd., decided on 8th December 2021, available at:image acco https://indiankanoon.org/doc/35584829/ last accessed on 6 January, 2022.

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Designs Act, 2000 – summary and notes

Table of Contents

Introduction

The objective of the design Act, 2000 is to protect new or original designs so created to be applied or applicable to a particular article to be manufactured by Industrial Processes or means.

Sometimes the purchase of articles for use is influenced not only by their practical efficiency but also by their appearance. The important purpose of design Registration is to see that the artisans, creator, originator of a design having aesthetic look are not deprived of his bonafide reward by others applying it to their goods.

Design Act Protects External Aspects of the design of the article and not the technical or functional aspects of the design of a product. Industrial or product’s design is registrable under the Design Act while purely artistic works are protected under the Copyright Act.

Definition And Meaning of Design

Design means only the features of shape, configuration, pattern or ornament or composition of lines or color 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 eyes;
But it does not include any mode or principle of construction of anything which is in substance a merely mechanical device.
It does not include any trademark defined in the Trade Marks Act or artistic work as defined in the Copyright Act.

Registration of Design

Registration of design shall be for any or all of the articles comprised in a prescribed class of articles section 6.
Section 7 empowers Central Government to make rules for the classification of articles
Registration of design shall be done with the Controller of Designs
A new or original design can be registered by the controller, if it is not previously published in any country and which is not contrary to public order or morality.
Before it is registered, it may be examined by an examiner.
Application for registration shall be in prescribed Form No.1
Registration can be for only one of the classes of goods.
If the controller refuses a registration, an appeal can be filed to High Court.
The design will be registered as of the date of application for registration.

Tenure of Registration of Design

Section 11 provides that when a design is registered, the registered proprietor of design gets copyright in the design for 10 years from the date of registration.

However, before the expiration of the said 10 years, application for the extension of the period of copyright is made to the controller in the prescribed manner, the controller shall, on payment of the prescribed fee, extend the period of copyright for the second period of 5 years from the expiration of the original period 10 years.

Application for renewal shall be made in prescribed Form No.3 with fees before the expiration of the period of 10 years.

Cancellation of Registration

Section 19 provides that a registration can be canceled if:

The design was previously registered in India.
It has been published prior to the date of registration
Design is not new and original
Design is not registrable under the act
It is not designed as defined under section 2(d)

Piracy of Design

Piracy of a design means the application of a design or its imitation to any article belonging to the class of articles in which the design has been registered for the purpose of sale or importation of such articles without the written consent of the registered proprietor.

The person acting in contravention of the above is liable to pay damages for contravention. In addition, damages may be claimed and injunction can be asked from the court.

Remedies In Case of Registered Design Against Infringement

Only civil remedies are available and no criminal remedies is available against infringement of copyright in the design. Civil Remedies available are:

Damages or compensation, and
Delivery up of infringement articles.

Bharat Glass Tube Limited v. Gopal Glass Works Limited, 2008

In this case the Supreme Court defined the object and purpose of the Act in the following words:

“The object of the act is to protect the Intellectual Property Rights (IPRs) of the original design with the aim to reward the innovator for research and labor applied to evolve a new and original design. The Court further emphasized that the protection given with respect to designs is primarily to advance industries and to keep them in a high level of competitive progress. One interesting feature of industrial design is that, unlike patents, it does not have high social costs as it does not offer someone the status of an absolute monopolist in the relevant market”.

Gopal Glass Works Ltd. v. Assistant Controller of Patents & Designs,2006

In this case, the court held that under the law presently in force in India, specification, drawings, and demonstration in connection with the registration of a design do not per se constitute publications that prohibit future registration of that design. Had publication of design specifications by a registering authority, particularly a registering authority in a foreign country, in connection with the registration of a design, in itself, amounted to prior publication, it would have hit all future applications in India for registration of designs. It is significant that parliament consciously made publication in a country other than India a ground of cancellation, in addition to publication in India, but expressly restricted the embargo of prior registration to registration in India. Thus registration in a country other than India had not been made a ground for the cancellation of a registered design.

Author: Rohit, Law Center-II, Faculty of law, University of law,2nd Year, Student

Salient Features of Design Act 2000

Intellectual Property Rights Subject-wise Law Notes
Aishwarya Agrawal
May 29, 2023

The Design Act, 2000 replaced the previous legislation, the Design Act of 1911, in order to align Indian design laws with international standards. This enactment aimed to consolidate and amend the law concerning the protection of designs and it came into force on 12th May 2000. Published in the Gazette of India, the Design Act of 2000 is a comprehensive and statutory code that applies nationwide, covering the entirety of India.

The salient features of design Act 2000 are:

Adoption of Locarno Classification

Under the Design Act 2000, India adopted the Locarno classification system for designs. Unlike the previous provisions that classified designs based on materials used, the Locarno classification categorises designs solely based on their subject matter. This shift simplifies the design registration process and ensures a more efficient classification system.

Introduction of “Absolute Novelty”

A significant feature of the Design Act 2000 is the introduction of the concept of “Absolute Novelty.” This provision allows the assessment of novelty based on prior publication of any article, not only within India but also in other countries. Designers can protect their creations from imitation or unauthorised use, even if they have been disclosed in other jurisdictions.

Restoration of Designs

The Act enables the restoration of designs that were absent in the previous enactment. This provision benefits designers who may have inadvertently missed the opportunity to register their designs. Now, they can restore the registration and enjoy the associated rights and protections.

Transfer of Cases to High Courts

The Act empowers district courts to transfer cases to high courts when the validity of a design registration is challenged. This provision ensures that such disputes are resolved in the appropriate judicial forum, streamlining the legal process and facilitating efficient resolution.

Delegation of Powers and Duty of Examiners

The Design Act 2000 addresses the delegation of powers of controllers to other controllers and the duty of examiners. These provisions promote transparency, accountability and efficiency within the design registration process, ensuring an effective intellectual property system.

Enhanced Punishment for Infringement

In terms of enforcement, the Act introduces an increased quantum of punishment for design infringement. This heightened penalty acts as a deterrent against unauthorised copying or imitation of registered designs, safeguarding the interests of designers and promoting respect for intellectual property rights.

Revocation of Secrecy Period

The Act revokes the requirement for maintaining secrecy of a registered design for two years. This change promotes transparency by allowing public access and inspection of registered designs. Anyone can obtain a certified copy of a registered design, fostering an open and accessible design registration system.

Avoidance of Restrictive Conditions

To regulate anti-competitive practices within contractual licenses, the Design Act 2000 includes provisions to avoid certain restrictive conditions. These provisions ensure that licenses do not impose unreasonable restrictions or hinder fair competition, promoting innovation and healthy competition in the marketplace.

Substitution of Applications

The Act addresses the substitution of applications before registering a design. This provision allows designers to correct errors or make necessary amendments to their applications without compromising the validity of their design registration. It provides flexibility and facilitates a smooth and error-free registration process.

The Design Act 2000 encompasses several salient features that enhance intellectual property rights in India. From the adoption of the Locarno classification system to the introduction of “Absolute Novelty” and restoration of designs, the Act demonstrates India’s commitment to promoting creativity, innovation and design protection. By strengthening the legal framework and enforcement mechanisms, the Act aims to create an environment that nurtures and supports designers, contributing to the country’s economic and technological development.

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Overview of The Design Act, 2000

Written by admin

Updated on: July 8, 2020

By Ashish Panday In India first legislation on Design was enacted by the British Government, The Designs Act 1911. In meanwhile India had made tremendous progress in the field of science and technology, and need enacted new Design legislation to full-full the need of these development. The Design Bill, 1999 came, with provision of International IRP laws. Presently, design laws are maintained by the Design Act, 2000. The term ‘Design’ under Design Act is defined as :

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[The Viewpoint] What makes for ‘new or original’: Design protection in India

Novelty or originality in design are central requirements for seeking protection under the law in India. Under the Designs Act, 2000 (“the Act”), for a design to be capable of being registered, it must be new or original. In common usage, the words ‘novelty’ and ‘originality’ are often used interchangeably, but in law, they have nuanced differences that have developed over time. In this note, we reflect on some cases that highlight these requirements in design law.

Meaning of “New or Original”

The term “new” is commonly understood to refer to a design that is not known or is completely new. The term “original” is defined in Section 2(g) of the Act as, “ in relation to a design, means originating from the author of such design and includes the cases which though old in themselves yet are new in their application ”.

It follows that a "new" design is one that comes into public knowledge for the first time upon registration, whereas an “original” design may not be strictly new, but there is newness or originality in applying an existing design to a particular article which no one thought of before. Courts have recognized that an old design applied to a new article to which it has never been previously applied is protectable, provided it is not merely analogous.

In Asian Rubber Industries v. Jasco , the validity of the plaintiff’s footwear design was challenged on grounds that it was not new or original as it was developed from ‘padukas’, known since centuries. The Court took the view that the plaintiff had no claims of being the inventor of ‘padukas’ but claimed exclusivity in the ‘creative expression’ and the ‘look and feel’ of their products. Further, the look and feel of padukas with the modification of strap to support the foot was not known to have been applied to footwear. Accordingly, the application of the paduka design to footwear would qualify as designs that are old yet original in their application. Hence, the design was covered by the meaning of 'original' under the Act.

In Havells India Limited vs. Panasonic Life Solutions India Pvt. Ltd ., the design under challenge was marble/stone pattern printed on fan blades. The defendant contended that no monopoly can be claimed over a concept, i.e., stone/marble print, which is commonplace or exists in nature. However, applying the same principle as in Asian Rubber Industries , the Delhi High Court decided in favour of the plaintiff.

Designs: When “New” or “Original”

For a design to be considered new or original: (i) it must not have been disclosed to the public, anywhere in India or in any other country, by publication or by use or in any other way, prior to the filing date or priority date, and (ii) it must be significantly distinguishable from known designs or combination of known designs.

What constitutes prior publication

The word “published” is not defined in the Act. (Presently, prior publication is determined globally, although under the repealed Designs Act, 1911, this was restricted only to India). In Venus Industries Vs Magppie Exports , the Controller held that while there is no statutory definition of publication in the present or repealed Design Acts, any design, made available to any person in India who is free to use or disclose it, is treated as published.

It is pertinent to note that prior registration of a design in India, would also amount to publication. However, a prior registration in a foreign country may not amount to prior publication. In Reckitt Benckiser India Ltd. vs. WYETH Ltd. , the full bench of Delhi High Court unanimously held that a mere registration abroad would not be a ground for cancellation of the design in India unless it is shown that publication was prior to the registration date of the same or similar design in India.

Moreover, prior publication must be in a ‘tangible form’ and in Bharat Glass Tube Limited vs. Gopal Glass Works Limited , the Court observed that two things must be disclosed in the prior publication: the design itself, and the same article to which the design is to be applied. To destroy the novelty of a design, the prior published design must be in respect of the same article.

A prior published document which does not explicitly disclose the design, but implicitly suggests how the pattern, shape and/or configuration which constitutes the design is to be applied to an article, could be considered as relevant prior publication. The only requirement is that there must be clear and unmistakable directions present in the document to arrive at the design. In Kamdhenu Limited vs. Aashiana Rolling Mills Ltd. , novelty was claimed in the surface pattern of ribs on steel rods. The Delhi High Court held that this pattern was based on prescribed product standards with a reasonable degree of specificity and therefore, it could not be accepted as original or novel.

Design must be “significantly” distinguishable from known designs

In order to establish ‘new or original’ there must be a significant change or difference in the design as compared to known designs and mere trade variants may not meet the test of new or original.

In Bright Auto Industries vs. Raj Chawla , the Delhi High Court held that a slight variation in the registered design from a pre-existing design would not qualify for registration. The Court held that ‘substantial difference’ is a question upon which no general principle can be laid down at all and depends on the facts of each case. In some cases, a small variation may be enough to make the design different from an existing design; on the other hand, even large alterations in details may leave two designs the same. In this case, the Court observed that the innovation by adding a curve here or there in a well-recognized shape of an article of common use (here, a rear-view mirror) was not substantial to hold the design new or original; and that a trivial or infinitesimal variation from a pre-existing design will not qualify it for registration.

Test for New or Original

To determine whether the design is prior published or significantly distinguishable from known designs, the Courts apply the “eye test” or “ocular impression” to determine the visual effect and appeal of the designs. This test is applicable for judging novelty and originality, as well as for determining infringement.

For infringement, the ocular comparison of the infringing design vis-à-vis the registered design is from the perspective of the “eye of purchaser”. However, when determining novelty or originality of a design against a prior known design, the eye should be an “instructed eye” or an eye of a person aware of the known designs and the common trade variants.

In order to qualify as ‘new’ or ‘original’, a design must be substantially different from existing designs and should not be a mere trade variant. This determination is based on the ‘ocular impression’ of an informed person who is capable of discerning between common design variations and something substantial. In order to challenge the novelty or originality of a registered design, the prior publication must be tangible, in that it must disclose the design applied to the same article.

Sneha Agarwal is a Partner at Obhan & Associates.

What makes for ‘new or original’: Design protection in India In order to qualify as ‘new’ or ‘original’, a design must be substantially different from existing designs & should not be a mere trade variant Sneha Agarwal is a Partner at Obhan & Associates https://t.co/0JFjnsfrtf — Bar & Bench (@barandbench) October 14, 2022

The Designs Act, 2000: A Fashion Faux Pas

12 Pages Posted: 6 Dec 2012

Poojan Sahny

Amity Law School

Date Written: December 5, 2012

As reflected in the title, this paper seeks to highlight the deficiency of an industrial law, the Designs Act, 2000, in serving an industry it strives to protect - the fashion apparel industry in India. The trends in the fashion world evolve and change, literally, at the drop of a hat. What is considered chic today may not be in vogue tomorrow. This dynamic environment calls for an effective and efficient IP mechanism to protect and promote design innovation. However, the scheme of the current Designs Act, 2000 fails to create the required incentive for design activity as is stated in the objects and reasons of the Act. The inefficacy of the law to cater to the fashion apparel industry is reflected in the provisions of the Designs Act, 2000 and the Designs Rules, 2001. This paper attempts to accentuate the infirmities of the legislation as listed below. First and foremost, the fact that a design is not offered protection from its very inception, but only on registration, is a major default in the Act, from the perspective of the fashion industry. Secondly, the procedure prescribed for registration of a design is much tedious and time consuming. Also, this paper explores the possibility of protection of 'fashion design' as an 'artistic work' under the Indian Copyright Act, 1957 and the judicial opinion on the same. This research paper relies on the doctrinal methodology of research. Reliance has primarily been placed on case laws, journals and established commentaries dealing with the subject. Plausible solutions to the inadequacy of the Designs Act, 2000 to foster creation and novelty in the fashion design apparel industry have been suggested herein.

Suggested Citation: Suggested Citation

Poojan Sahny (Contact Author)

Amity law school ( email ).

F-1 Block, Amity University Campus Sector 125 Noida, ND Uttar Pradesh 201005 India

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Case Study: Registration of a Design

ABC Communications, a telecommunications company, is in the design phase of a new device that incorporates a cell phone, PDA, MP3 player, GPS chip, and Internet capabilities. There is a concern that the new device may have nearly the same design as their competitor's product, for which an application for registration of industrial design has already been submitted. A former intern, who is now employed by the competitor, is believed to have leaked information.

Can ABC Communication apply for registration of the design of the new device under the Designs Act, 2000?

Basic Requirements of Design Registration

In order for the design to be registered and protected under the Design Act, 2000, it needs to fulfill the following essential elements:.

1. Novelty aspect: Novelty means newness. If a product's design has a novelty aspect, then only it can be registered. A combination of registered designs can also be considered, but only if that combination produces new visuals.

2. There must be no prior publication of the design, and the design must be unique. The design should be unique in nature and should not be disclosed to the public anywhere in India or somewhere else in the world by way of use, prior publication, or in any other way.

3. Applying design to an article : The design should be applied to the article itself. Without an article, registration of a design is not possible.

4. The design should not be contrary to the public order, morality, or security of India. The design should not be prohibited by the government or any authorized institution. It must be capable of registration under Section 5 of the Design Act, 2000. A design that is against public morality or against the sentiments of people may not be allowed to be registered.

5. Documents required for design registration. : The following are the documents required to register a document in India:

Name and detailed address of the applicant
Nature or legal status of the applicant, i.e., whether the applicant is a natural person, company, etc.
For start-ups, the applicant should provide a certificate of registration.
The applicant is also required to file the description of the ‘article’ along with the identification of the class as per the classification.
A minimum of four images or drawings of the article from every angle are to be filed along with the application.

A design is capable of being registered only if it is new or original.

Novelty: A design shall be considered new when it has not been disclosed to the public, anywhere in India or in any other country, by publication, by use, or in any other way, prior to the filing date or priority date.

A design shall be considered new if it is significantly distinguishable from known designs or a combination of known designs. (Section 4 of the Design Act, 2000.)

Originality: original in relation to a design means;

Section 5 of the Act provides that the Controller may, on the application of any person claiming to be the proprietor of any new or original design not previously published in any country and which is not contrary to public order or morality, register the design under the Act.

Every application for registration is required to be made in the prescribed manner and accompanied by the prescribed fee.

A design, when registered, shall be registered as of the date of the application for registration.

As per Section 7 of the Act, the Controller shall, as soon as may be after the registration of a design, cause publication of the prescribed particulars of the design to be published in the prescribed manner and the design to be open to public inspection.

Under Section 9 of the Design Act, the Controller grants a certificate of registration to the proprietor of the design when it is registered. The important purpose of design registration is to ensure that the artisan, creator, or originator of a design with an aesthetic look is not deprived of his bona fide reward by others applying it to their goods.

The company that is not the actual creator of design cannot apply for registration of design. Therefore, going through the above provisions of the Design Act, ABC Communication can apply for registration of the design of a new device under the Designs Act, 2002, as a competitor has just applied for registration of a duplicated design that has not been registered. During the examination, when ABC Communication is asked to clarify the status of its design with reference to an application filed by a competitor, it can submit proof that its own design is original and new and that the competitor has stolen its design while it is in the stage of development.

Disclaimer: The case study presented here is only for sharing information with readers. In cases of necessity, consult with professionals.

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Standardization of the Management of The Designs Act, 2000

Introduction

In our daily life we come across various kinds of designs. The first Designs Act that came in India was The Patterns and Designs Protection Act, 1872 which extended to British India designs as well. Products that are artistically designed grab the attention of everyone and it is important that one’s creativity is not infringed or imitated. Till date, fashion brings more and more fans willing to pay large amounts of money to feel and to look about their own appearance and adornments. Today, fashion laws have come as a brand of new legal sanctity that involves various issues of Intellectual Property Rights particularly trademark law, copyright law and at times it also includes the Patent and Trade secrets. In the field of legal realm and regime the term ‘fashion’ has been protected and secured under the shade of intellectual property. Focusing on the Fashion Industry in this article, I would like to highlight the laws that govern the Indian fashion industry and its designs.

What laws govern designs in Indian?

Design Act, 2000 is the law ensuring the originality of the design of an article and a registered design may help to act against piracy. It’s clear that the act’s purpose is to protect designs. In addition, the act amplifies the complexity of designs such as design lapse, restoration of lapsed designs, period until a design remains in effect. The very first act for the protection of designs came in the year 1911 but due to the increase in registration of designs and development of science a new law was required. The aim of the act is to provide more effective protection to the registered designs, compulsory registration of any document for transfer of right in the registered design and to promote design activity and also to put a block on the rampant piracy.

Design Rules 2001: The Act empowers the Central Government to prescribe the rules while the Department of Industry Policy & Promotion under the Ministry of Commerce & Industry is the authority of the Central Government concerned with the enforcement of this act. Under the authority of the Act, the Design Rules are enforced to define some guidelines about certain complex issues such as the amount of fee payable, who would apply for the registration of a design (i.e. a natural individual or a registered corporate entity), how much amount the small entity will pay for. Therefore, there’s a distinction between the amount of fee and other procedural requirements which apply differently to corporate entities ranging from small entities defined under the Micro, Small & Medium Enterprises Development Act, 2006. Thus, the manner in which day-to-day procedures are actually performed, such as the application process, the number of forms to be submitted, the types of forms to be submitted, the request to assert as a small entity and the sum of costs to be charged in the proceedings before the controller were presented in detail in accordance with the Rules. The Designs Rules have been amended from time to time and the following are in force at the moment:

Design Rules, 2001- These are the very basic rules which provide for very minute details about the practical aspects related to Designs namely- leaving and serving document, Address for Service, payment of Fees (available in First Schedule of the Rules, now amended by the Designs Rules 2014, kind of Forms set forth in the Second Schedule, Classification of Goods, Application for Registration, Inspections and Searches, Register of Designs, Registering designs
Designs (Amendment) Rules, 2014- It amended the Designs Rules of 2001 and has replaced erstwhile provisions regarding the application made by the natural person, small entity and others.
Designs (Amendment) Rules, 2008- It amended the rules (of 2001) as to service of notice, amount of costs that could be claimed and added class of products for which a design could be registered.
Design (Amendment) Rules, 2021- There were total 8 amendments in the existing rules. The amended rules are aimed at making the rules according to ‘Startup culture’.

IPR laws of India:

The Law on the subject is covered by the Copyright Act; the Trade and Merchandise Marks Act; Patents Act and the Designs Act. These are mainly based on the English law on the subject. The law is poised for fundamental changes to meet the international commitment of the Indian Government under the TRIPS/WTO Agreement.

Copyright deals with the artistic rights of the intellectual authors. The copyright law deals with the basic types of invention, mainly regarding mass communication. The 1957 Copyright Act protects from unauthorized use original literary, dramatic, musical and artistic works, including cinematographic films including sound recordings. There is no copyright protection for ideas, procedures, methods of operation or mathematical concepts as such. In the case of artistic works, section 14 of the Copyright Act mentions:

a) To reproduce the work in any material from including storing of it in any medium by electronic or other means, depiction in three dimensions of a two dimensional work and depiction in two dimensions of a three dimensional work,
b) Communicating the work to the public,
c) Issuing copies of work to the public which are not already in existence,
d) Including work in any cinematograph films,
e) Making adaptation of the work, and to do any of the above acts in relation to an adaptation of the work.

Trademarks Right :

Trademark rights are legally protected in India under the Trademark Act, 1999 and even under the passing off remedy under common law. The Controller General of Patents, Designs, and Trademarks is responsible for enforcing these rights under the Act. The Trademark Act, 1999 deals with the protection, registration, and prevention of trademark fraud. It also deals with the trademark holder’s rights, infringement damages, redress for the affected as well as modes of trademark transition.

Trademark is defined in the Trademark Act, 1999 as, “trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colors.” Such a mark may include numerous things such as signatures, names, labels, headings etc.

Similar to Trademarks, copyright, design and geographical indications, Patent is also an Intellectual Property which is protected under the Law and the rightful owner of the Patent can claim rights and authorities under the Law for a limited period. In India, the Law of Patent is primarily governed by the Patent Act of 1970. The word “Patent” refers to a monopoly right over an invention. Not all inventions are patentable nor it is essential to protect inventions solely through patent. The final product that results from an invention may be protected through other forms of intellectual property rights. The statutory definition of Patent under the Patent Act as a Patent for any invention granted under the Act

Industrial Design: the Designs Act, 2000 protects certain designs. The features of shape, configuration, pattern, ornament or composition of lines or colors applied to any ‘article’ whether in two or three dimensional forms (or both), by an industrial process which appeals to the eye can be registered under the said Act. The Designs Act 2000 brought into force in May 2001 entitles an applicant to apply for registration in more than one class. However, registration is granted for only one class. Furthermore detailed classification of designs has been incorporated conforming to the international regime. Copyright in the design under the 2000 Act would be protected for a period of 10 years from the date of registration.

Geographical Indication:

The Geographical Indication of Goods (Registration and Protection) Act, 1999, was enacted to register and protect geographical indicia of goods that originate from or are manufactured in a particular territory, region or even locality. These goods include agricultural, natural or manufactured goods that are distinct from similar products due to quality, reputation or any other characteristic that is essentially attributable to their geographical origin. Under the Act, such distinctive geographical indicia can be protected by registration. The Act thus facilitates promotion of Indian goods when exported overseas and in turn protects consumers from deception.

An application for registration of a geographical indication can be made by any authority, organization or association of persons representing the interest of the producers of the concerned goods. Registration would entitle a registered proprietor, or a duly authorized user, to the exclusive right of usage of that particular geographical indication with respect to the goods for which it is registered and to obtain relief for any infringement thereof. It may be pointed out however, that non-registration does not mean non-protection of a rightful user. Registration affords better protection in an action for infringement.

The validity of bona fide registration of a geographical indication as a trade mark prior to the coming into force of the Act will not be affected by this enactment and will be treated as valid under the laws relating to trade marks.

What is a design?

Section 2 clause (d) of the Design act, 2000 gives a detailed definition of design under the ambit of this act for the purpose of registration. It means only the features of shape, configuration, pattern, ornament or composition of lines or colors 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 a design does not include a trademark (a trademark serves as an important link between the product and the originator or maker of that product so that the customer can relate), also a design does not include the mode or principle of construction. The major focus is upon the visual appearance of the aesthetic feature of an article. These designs also bind the government as they bind any other ordinary person. So, it’s always beneficial to register a design.

Essentials of Design:

Checkpoints which can be considered a design:

Should be new or original
Design must be unique, a Prior publication is not acceptable
The design must not be contrary to the order and morality
It should be related to features of shape, configuration, pattern or ornamentation applied to the article.
The design should be applicable on any article by industrial process.
Any mode or principle of construction or operation or anything which is in substance a mere mechanical device would not be registered under this act.
The design should not include any trade mark or property mark or artistic works.

Registration:

Any person whether citizen of India or not can file for the registration for design. Person, here in this case, would be any individual, legal entity and claiming to be proprietor. Legal representative or assignee.

Application for the registration can be filed separately or jointly.

As per the provisions any proprietor who is seeking registration of a design which is original and unpublished previously in any country which does not seem 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.

Items that cannot be registered under this act:

Signs, emblems or flags of any country.
Size of any article, if changed.
Structures and buildings.
Integrated circuits’ layout designs.
Trade variations.
Any principle or mode of construction of any article such as labels, tokens, cartoons, cards, etc.
Books, calendars, certificates, jackets, forms-and other documents, greeting cards, maps and plan cards, postcards, leaflets, stamps, medals, dressmaking patterns.
A mechanical contrivance.
Workshop alterations of components of an assembly.
Parts of any article which is not manufactured and sold separately.

A Controller General of Patents is appointed under the Trade & Merchandise Marks Act, 1958. It is an authority appointed by the Central Government to carry out the purposes of the Act. He decides whether to allow registration of a Design or to refuse it and all the matters related to practical aspects of designs. The Controller has power to hear any person who makes a claim before him but he must give the applicant an opportunity of being heard. Section 3 of the Act deals with the information about the Controller.

Chapter 2 of the Design Act deals with the registration of designs and the procedure to be followed for the same. An application for the registration shall be made in the patent office in the prescribed form along with the prescribed fee. The class in which the design is to be registered must be specified in the application and the article(s) to which it is to be applied. There are separate applications which need to be filed for each class of article. The controller will give the application for examining it so as to check whether the design is capable of being registered or not. If everything seems in line with the prescribed manner then the controller will accept the application and proceed further.

Section 5 of the act makes it clear that a design may not be registered in more than one class, and, in case of doubt as to the class in which a design ought to be registered, the Controller may decide the question. India has entered into the Locarno agreement as per which the designs are registered under the Act. It classifies goods for the purpose of registering them which helps in Design searches. It divides designs into different classes which are mainly function-oriented. The controller can even refuse to register any design presented to him for registration; but any person, person aggrieved by any such refusal has the right to appeal to the High Court in jurisdiction. (Section 5, clause 4) The design may be registered under a particular class, any questions arising out the class may be answered and dealt with by the Controller. The act gives the Controller enough authority to decide any questions related to the design and his/her decision is considered to be the final decision. In the proceedings before a Controller, a representation could be made through a legal practitioner or through an agent whose name and address had been entered in the registration of patent agents.

Process of Registration:

Once the application is submitted, the examination takes place. If all the things are as per the prescribed manner, the certificate is issued. If there are any objections mentioned by the Controller, there can be two things. Firstly, if the objection is made and the application is refused, the registration gets cancelled to which an appeal in the High Court can be made. Secondly, if the objections are mentioned and you are asked to make necessary amendments, the new draft is again examined. If the new draft is as per the given guidelines, it is accepted and the certificate is issued. If the objection does not get removed within three months after the hearing, the application is withdrawn.

The act provides 10 years of rights to the originator on his/her design which can be further extended to 5 more years. Therefore, in total 15 years of rights is provided under the act. The registration of the design can be cancelled anytime if a petition is filed for the same. There are various grounds as per section 19 of the act, on which the cancellation can take place.

It has been published in India or somewhere else before the date of registration.
The design is not original or new.
It is not registrable under the Act. The design has been already registered in India previously.
The design has been registered in India previously.

The application for registration of design, cancellation of design, extending the rights or rectification can be filed at the Head office which is situated in Kolkata or also in the branch offices which are in Delhi, Mumbai and Chennai.

The Design Rules, latest amendment of 2014 gives us all the forms for application along with the fees for every application. Some form numbers along with the fees are given below:

Application type	Form number	Natural person	Small entity	Other entities
Registration in India	1	1000/-	2000/-	4000/-
Extension of copyright	3	2000/-	4000/-	8000/-
Restoration of lapsed design	4	1000/-	2000/-	4000/-
Alteration name, address etc	22	200/-	400/-	800/-

Infringement of copyright

Piracy of the registered design is considered to be an infringement of the copyright under this act. It is unlawful for any person to copy someone else’s design. Section 22 of the act lays down the acts that will amount to infringement

(a) for the purpose of sale to apply or cause to be applied to any article in any class of articles in which the design is registered, the design or any fraudulent or obvious imitation thereof, except with the license or written consent of the registered proprietor, or to do anything with a view to enable the design to be so applied; or

(b) to import for the purposes of sale, without the consent of the registered proprietor, any article belonging to the class in which the design has been registered, and having applied to it the design or any fraudulent or obvious imitation thereof, or

(c) knowing that the design or any fraudulent or obvious imitation thereof has been applied to any article in any class of articles in which the design is registered without the consent of the registered proprietor, to publish or expose or cause to be published or exposed for sale that article.

If any person is found to act in contravention with the above listed actions, s/he is liable to pay a sum of twenty-five thousand rupees recoverable as a contract debt to the registered proprietor of the design. Or if the proprietor decides to bring a suit for the recovery of damages for any such contravention, and for an injunction against the malicious action, s/he shall pay such damages as may be awarded and would be restrained by injunction. But, the act also suggests that the amount shall not exceed the sum of fifty thousand rupees. It is also important to take in consideration the meaning of fraudulent imitation. Here, the imitation is made with the intention to deceive another person with the knowledge that what is being done is the violation of another person’s rights. The judicial remedy to such a situation is damages along with the injunction as mentioned above. A suit of injunction can also be filed under the Specific Relief Act, 1963

Another important point of this Act is the allowance of priority through conventionIt provides a reciprocal arrangement between a few countries with which India has entered into a convention. Through this, provisions have been made which give priority to the applicant belonging to the countries of the convention over the other applicants.

Conclusion:

The following points can be taken away from this article

Definition of the term “design” explained.
IPR laws related to design
Essentials of Design
Introduction of provision for delegation of powers of the Controller to other officers and stipulating statutory duties of examiners.
Provision and explanation for application of registration of a design.
Items that cannot be registered under this act
Infringement
Forms and application fees
Substitution of Indian classification by internationally followed system of classification.
Restoration of lapsed designs.
Appeal against orders of the Controller before the High Court
Grounds in cancellation proceedings and provision for initiating the cancellation proceedings before the Controller in place of the High Court.
Quantum of penalty imposed for infringement of a registered design.
Period of registration of 10 years, to be followed by a further extension of five years.
Allowance of priority to other convention countries and countries belonging to the group of countries or inter-governmental organizations apart from the United Kingdom and other Commonwealth Countries.

Apoorva Mehta

Executive Manager, Legal Desire Media and Insights

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The Designs Act 2000

Home The Designs Act 2000

THE DESIGNS ACT, 2000 No. 16 of 2000 SECTION 1: Short title, extent and commencement SECTION 2: Definitions SECTION 3: Controller and other officers SECTION 4: Prohibition of registration of certain designs SECTION 5: Application for registration of designs SECTION 6: Registration to be in respect of particular article SECTION 7: Publication of particulars of registered designs SECTION 8: Power of Controller to make orders regarding substitution of application, etc. SECTION 9: Certificate of registration SECTION 10: Register of designs SECTION 11: Copyright on registration SECTION 12: Restoration of lapsed designs SECTION 13: Procedure for disposal of applications for restoration of lapsed designs SECTION 14: Rights of proprietor of lapsed design which have been restored SECTION 15: Requirements before delivery on sales SECTION 16: Effect of disclosure on copyright SECTION 17: Inspection of registered designs SECTION 18: Information as to the existence of copyright SECTION 19: Cancellation of registration SECTION 20: Designs to bind Government SECTION 21: Provisions as to exhibitions SECTION 22: Piracy of registered design SECTION 23: Application of certain provisions of the Act as to patents to designs SECTION 24: Fees SECTION 25: Notice of trust not to be entered in registers SECTION 26: Inspection of and extracts from registers SECTION 27: Privilege of reports of Controller SECTION 28: Prohibition and publication of specification, drawings, etc. where application abandoned, etc. SECTION 29: Power of Controller to correct clerical errors SECTION 30: Entry of assignment and transmissions in registers SECTION 31: Rectification of register SECTION 32: Powers of Controller in proceedings under Act SECTION 33: Exercise of discretionary power by Controller SECTION 34: Power of Controller to take directions of the Central Government SECTION 35: Refusal to register a design in certain cases SECTION 36: Appeals to High Court SECTION 37: Evidence before the Controller SECTION 38: Certificate of Controller to be evidence SECTION 39: Evidence of documents in patent office SECTION 40: Applications and notices by post SECTION 41: Declaration by infant, lunatic, etc. SECTION 42: Avoidance of certain restrictive conditions SECTION 43: Agency SECTION 44: Reciprocal arrangement with the United Kingdom and other convention countries or group of countries or inter-governmental organizations SECTION 45: Report of the Controller to be placed before Parliament SECTION 46: Protection of security of India SECTION 47: Power of Central Government to make rules SECTION 48: Repeal and savings

Published in the Gazette of India (Extraordinary Part II-Section I)

Dated may 12, 2000, the designs act, 2000, no. 16 of 2000.

[25 th May, 2000]

An Act to consolidate and amend the law relating to protection of designs.

BE it enacted by Parliament in the Fifty first Year of the Republic of India as follows:-

PRELIMINARY

Short title, extent and commencement

(1) This Act may be called the Design Act, 2000. (2) It extends to the whole of India. (3) It shall come into force on such date as the Central Government may, by notification, in the Official Gazette, appoint; and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.

Definitions

In this Act, unless there is anything repugnant in the subject or context, -

(a) “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; (b) “Controller” means the Controller-General of Patents, Designs and Trade Marks referred to in Section 3; (c) “copyright” means the exclusive right to apply a design to any article in any class in which the design is registered; d) “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, 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). (e) “High Court” shall have the same meaning as assigned to it in clause (i) of sub- section (I) of section 2 of the Patents Act, 1970 (39 of 1970); (f) “legal representative” means a person who in law represents the estate of a deceased person; (g) “original”, in relation to a design, means originating from the author of such design and includes the cases which though old in themselves yet are new in their application ; (h) “Patent Office” means the patent office referred to in section 74 of the Patents Act, 1970 (39 of 1970). (i) “prescribed” means prescribed by rules under this Act; and (j) “proprietor of a new or original design”, - (i) where the author of the design, for good consideration, executes the work for some other person, means the person for whom the design is so executed; (ii) where any person acquires the design or the right to apply the design to any article, either exclusively of any other person or otherwise, means, in the respect and to the extent in and to which the design or right has been so acquired, the person by whom the design or right is so acquired; and (iii) in any other case, means the author of the design; and where the property in or the right to apply, the design has devolved from the original proprietor upon any other person, includes that other person.

REGISTRATION OF DESIGNS

Controller and other officers.

(1) The Controller General of Patents, Designs and Trade Marks appointed under sub-section (1) of section 4 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) shall be the Controller of Designs for the purposes of this Act. (2) For the purposes of this Act, the Central Government may appoint as many examiners and other officers and with such designations, as it thinks fit. (3) Subject to the provisions of this Act, the officers appointed under sub-section (2) shall discharge under the superintendence and directions of the Controller such functions of the Controller under this Act as he may, from time to time by general or special order in writing, authorize them to discharge. (4) Without prejudice to the generality of the provisions of sub-section (3), the Controller may by order in writing and for reasons to be recorded therein, withdraw any matter pending before an officer appointed under sub-section (2) and deal with such mater himself either de novo or from the stage it was so withdrawn or transfer the same to another officer appointed under sub-section (2) who may, subject to special directions in the order of transfer, proceed with the matter either de novo or from the stage it was so transferred.

Prohibition of registration of certain designs

A design which - (a) is not new or original; or (b) 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; or (c) is not significantly distinguishable from known designs or combination of known designs; or (d) comprises or contains scandalous or obscene matter shall not be registered.

Application for registration of designs

(1) The Controller may, on the application of any person claiming to be the proprietor of any new or original design not previously published in any country and which is not contrary to public order or morality, register the design under this Act: Provided that the Controller shall before such registration refer the application for examination, by an examiner appointed under sub-section (2) of section 3, as to whether such design is capable of being registered under this Act and the rules made thereunder and consider the report of the examiner on such reference. (2) Every application under Sub-Section (1) shall be in the prescribed form and shall be filed in the Patent Office in the prescribed manner and shall be accompanied by the prescribed fee. (3) A design may be registered in not more than one class, and, in case of doubt as to the class in which a design ought to be registered, the Controller may decide the question. (4) The Controller may, if he thinks fit, refuse to register any design presented to him for registration; but any person, person aggrieved by any such refusal may appeal to the High Court. (5) An application which, owing to any default or neglect on the part of the applicant, has not been completed so as to enable registration to be effected within the prescribed time shall be deemed to be abandoned. (6) A design when registered shall be registered as of the date of the application for registration.

Registration to be in respect of particular article

(1) A design may be registered in respect of any or all of the articles comprised in a prescribed class of articles. (2) Any question arising as to the class within which any article falls shall be determined by the Controller whose decision in the matter shall be final. (3) Where a design has been registered in respect of any article comprised in a class of article, the application of the proprietor of the design to register it in respect of some one or more other articles comprised in that class of articles shall not be refused, nor shall the registration thereof invalidated - (a) on the ground of the design not being a new or original design, by reason only that it was so previously registered; or (b) on the ground of the design having been previously published in India or in any other country, by reason only that it has been applied to article in respect of which it was previously registered: Provided that such subsequent registration shall not extend the period of copyright in the design beyond that arising from previous registration. 4) Where any person makes an application for the registration of a design in respect of any article and either- (a) that design has been previously registered by another person in respect of some other article; or (b) the design to which the application relates consists of a design previously registered by another person in respect of the same or some other article with modifications or variations not sufficient to alter the character or substantially to affect the identity thereof, then, if at any time while the application is pending the applicant becomes the registered proprietor of the design previously registered, the foregoing provisions of the section shall apply as if at the time of making the application the applicant had been the registered proprietor of that design.

Publication of particulars of registered designs

The Controller shall, as soon as may be after the registration of a design, cause publication of the prescribed particulars of the design to be published in such manner as may be prescribed and thereafter the design shall be open to public inspection.

Power of Controller to make orders regarding substitution of application, etc.

(1) If the Controller is satisfied on a claim made in the prescribed manner at any time before a design has been registered that by virtue of any assignment or agreement in writing made by the applicant or one of the applicants for registration of the design or by operation of law, the claimant would, if the design were then registered, be entitled thereto or to the interest of the applicant therein, or to an undivided share of the design or of that interest, the Controller may, subject to the provisions of this section, direct that the application shall proceed in the name of the claimant or in the names of the claimants and the applicant or the other joint applicant or applicants, accordingly as the case may require. (2) No such direction as aforesaid shall be given by virtue of any assignment or agreement made by one two or more joint applicants for registration of a design except with the consent of the other joint applicant or applicants. (3) No such direction as aforesaid shall be given by virtue of any assignment or agreement for the assignment of the benefit of a design unless- (a) the design is identified therein by reference to the number of the application for the registration; or (b) there is produced to the Controller an acknowledgement by the person by whom the assignment or agreement was made that the assignment or agreement relates to the design in respect of which that application is made; or (c) the rights of the claimant in respect of the design have been finally established by the decision of a court; or (d) the Controller gives directions for enabling the application to proceed or for regulating the manner in which it should be proceeded with under sub-section (5 ). (4) Where one of two or more joint applicants for registration of a design dies at any time before the design has been registered, the Controller may, upon a request in that behalf made by the survivor or survivors, and with the consent of the legal representative of the deceased, direct that the application shall proceed in the name of the survivor or survivors alone. (5) If any dispute arises between joint applicants for registration of a design whether or in what manner the application should be proceeded with, the Controller may, upon application made to him in the prescribed manner by any of the parties, and after giving to all parties concerned an opportunity to be heard, give such directions as he thinks fit for enabling the application to proceed in the name of one or more of the parties alone or for regulating the manner in which it should be proceeded with, or for both those purposes, as the case may require.

Certificate of registration

(1) The Controller shall grant a certificate of registration to the proprietor of the design when registered (2) The Controller may, in case of loss of the original certificate, or in any other case in which he deems it expedient, furnish one or more copies of the certificate.

Register of designs

(1) There shall be kept at the Patent Office a book called the register of designs, wherein shall be entered the names and addresses of proprietors of registered designs, notifications of assignments and of transmissions of registered designs, and such other matter as may be prescribed and such register may be maintained wholly or partly on computer, floppies or diskettes, subject to such safeguards as may be prescribed. (2) Where the register is maintained wholly or partly on computer floppies and diskettes under sub-section (1), any reference in this Act to any entry in the register shall be construed as the reference to entry so maintained on computer, floppies or diskettes. (3) The register of designs existing at the commencement of this Act shall be incorporated with and form part of the register of designs under this Act. (4) The register of designs shall be prima facie evidence of any matter by this Act directed or authorized to be entered therein.

CHAPTER III

COPYRIGHT IN REGISTERED DESIGNS

(1) When a design is registered, the registered proprietor of the design shall, subject to the provisions of this Act, have copyright in the design during ten years from the date of registration. (2) If, before the expiration of the said ten years, application for the extension of the period of copyright is made to the Controller in the prescribed manner, the Controller shall, on payment of the prescribed fee, extend the period of copy-right for a second period of five years from the expiration of the original period of ten years.

Restoration of lapsed designs

(1) Where a design has ceased to have effect by reason of failure to pay the fee for the extension of copyright under sub-section (2) of section 11, the proprietor of such design or his legal representative and where the design was held by two or more persons jointly, then, with the leave of the Controller one or more of them without jointing the others, may, within one year from the date on which the design ceased to have effect, make an application for the restoration of the design in the prescribed manner on payment of such fee as may be prescribed.

(2) An application under this section shall contain a statement, verified in the prescribed manner, fully setting out the circumstances which led to the failure to pay the prescribed fee, and the Controller may require from the applicant such further evidence as he may think necessary.

Procedure for disposal of applications for restoration of lapsed designs

(1) If, after hearing the applicant in cases where the applicant so desires or the Controller thinks fit, the Controller is satisfied that the failure to pay the fee for extension of the period of copyright was unintentional and that there has been no undue delay in the making of the application, the Controller shall upon payment of any unpaid fee for extension of the period of copyright together with prescribed additional fee restore the registration of design. (2) The Controller may, if he thinks fit as a condition of restoring the design, require that any entry shall be made in the register of any document or matter which under the provision of this Act, has to be entered in the register but which has not been so entered.

Rights of proprietor of lapsed design which have been restored

(1) Where the registration of a design is restored, the rights of the registered proprietor shall be subject to such provisions as may be prescribed and to such other provisions as the Controller thinks fit to impose for the protection or compensation of persons who may have begun to avail themselves of, or have taken definite steps by contract or otherwise to avail themselves of, the benefit of applying the design between the date when the registration of the design ceased to have effect and the date of restoration of the registration of the design. (2) No suit or other proceeding shall be commenced in respect of piracy of a registered design or infringement of the copyright in such design committed between the date on which the registration of the design ceased to have effect and the date of the restoration of the design.

Requirements before delivery on sales

(1) Before delivery on sale of any articles to which a registered design has been applied, the proprietor shall- (a) (if exact representations or specimens were not finished on the application for registration) furnish to the Controller the prescribed number of exact representations or specimens of the design; and, if he fails to do so, the Controller may, after giving notice thereof to the proprietor, erase his name from the register and thereupon the copyright in the design shall cease; and (b) cause each such article to be marked with the prescribed mark, or with the prescribed words or figures denoting that the design is registered; and, if he fails to do so, the proprietor shall not be entitled to recover any penalty or damages in respect of any infringement of his copyright in the design unless he shows that he took all proper steps to ensure the marking of the article, or unless he shows that the infringement took place after the person guilty thereof knew or had received notice of the existence of the copyright in the design. (2) Where a representation is made to the Central Government by or on behalf of any trade or industry that in the interest of the trade or industry it is expedient to dispense with or modify as regards any class or description of articles any of the requirements of this section as to marking, the Central Government may, if it thinks fit, by rule under this Act, dispense with or modify such requirements as regards any such class or description of articles to such extent and subject to such conditions as it thinks fit.

Effect of disclosure on copyright

The disclosure of a design by the proprietor to any other person, in such circumstances as would make it contrary to good faith for that other person to use or publish the design, and the disclosure of a design in breach of good faith by any person, other than the proprietor of the design, and the acceptance of a first and confidential order for articles bearing a new or original textile design intended for registration, shall not be deemed to be a publication of the design sufficient to invalidate the copyright thereof if registration thereof is obtained subsequently to the disclosure or acceptance.

Inspection of registered designs

(1) During the existence of copyright in a design, any person on furnishing such information as may enable the Controller to identify the design and on payment of the prescribed fee may inspect the design in the prescribed manner. (2) Any person may, on application to the Controller and on payment of such fee as may be prescribed, obtain a certified copy of any registered design.

Information as to the existence of copyright

On the request of any person furnishing such information as may enable the Controller to identify the design, and on payment of the prescribed fee, the Controller shall inform such person whether the registration still exists in respect of the design, and, if so, in respect of what classes of articles, and shall state the date of registration, and the name and address of the registered proprietor.

Cancellation of registration

(1) Any person interested may present a petition for the cancellation of the registration of a design at any time after the registration of the design, to the Controller on any of the following grounds, namely:- (a) that the design has been previously registered in India; or (b) that it has been published in India or in any other country prior to the date of registration; or (c) that the design is not a new or original design; or (d) that the design is not registrable under this Act; or (e) it is not a design as defined under clause (d) of section 2. (2) An appeal shall lie from any order of the Controller under this section to the High Court, and the Controller may at any time refer any such petition to the High Court, and the High Court shall decide any petition so referred.

Designs to bind Government

A registered design shall have to all intents the like effect as against the Government as it has against any person and the provisions of Chapter XVII of the Patents Act, 1970 (39 of 1970) shall apply to registered designs as they apply to patents.

INDUSTRIAL AND INTERNATIONAL EXHIBITIONS

Provisions as to exhibitions.

The exhibition of a design, or of any article to which a design is applied, at an industrial or other exhibition to which the provisions of this section have been extended by the Central Government by notification in the Official Gazette, or the publication of a description of the design, during or after the period of the holding of the exhibition, or the exhibition of the design or the article or the publication of a description of the design by any person else-where during or after the period of the holding of the exhibition, without the privity or consent of the proprietor, shall not prevent the design from being registered or invalidate the registration thereof: Provided that- (a) the exhibitor exhibiting the design or article, or publishing a description of the design, gives to the Controller previous notice in the prescribed form; and (b) the application for registration is made within six months from the date of first exhibiting the design or article or publishing a description of the design.

LEGAL PROCEEDINGS

Piracy of registered design.

(1) During the existence of copyright in any design it shall not be lawful for any person- (a) for the purpose of sale to apply or cause to be applied to any article in any class of articles in which the design is registered, the design or any fraudulent or obvious imitation thereof, except with the license or written consent of the registered proprietor, or to do anything with a view to enable the design to be so applied; or (b) to import for the purposes of sale, without the consent of the registered proprietor, any article belonging to the class in which the design has been registered, and having applied to it the design or any fraudulent or obvious imitation thereof, or (c) knowing that the design or any fraudulent or obvious imitation thereof has been applied to any article in any class of articles in which the design is registered without the consent of the registered proprietor, to publish or expose or cause to be published or exposed for sale that article. (2) If any person acts in contravention of this section, he shall be liable for every contravention- (a) to pay to the registered proprietor of the design a sum not exceeding twenty-five thousand rupees recoverable as a contract debt, or (b) if the proprietor elects to bring a suit for the recovery of damages for any such contravention, and for an injunction against the repetition thereof, to pay such damages as may be awarded and to be restrained by injunction accordingly: Provided that the total sum recoverable in respect of any one design under clause (a) shall not exceed fifty thousand rupees: Provided further that no suit or any other proceeding for relief under this subsection shall be instituted in any court below the court of District Judge. (3) In any suit or any other proceeding for relief under subsection ( 2 ), ever ground on which the registration of a design may be cancelled under section 19 shall be available as a ground of defence. (4) Notwithstanding anything contained in the second proviso to sub-Section (2), where any ground or which the registration of a design may be cancelled under section 19 has been availed of as a ground of defence and sub-section (3) in any suit or other proceeding for relief under sub-section (2), the suit or such other proceedings shall be transferred by the Court in which the suit or such other proceeding is pending, to the High Court for decision. (5) When the court makes a decree in a suit under sub-section ( 2 ), it shall send a copy of the decree to the Controller, who shall cause an entry thereof to be made in the register of designs.

Application of certain provisions of the Act as to patents to designs

The provisions of the Patents Act, 1970 with regard to certificates of the validity of a patent, and to the remedy in case of groundless threats of legal proceedings by a patentee shall apply in the case of registered designs in like manner as they apply in the case of patents, with the substitution of references to the copyright in a design for reference to a patent, and of references to the proprietor of a design for references to patentee, and of references to the design for references to the invention.

(1) There shall be paid in respect of the registration of designs and applications therefor and in respect of other matters relating to designs under this Act such fees may be prescribed. (2) A proceeding in respect of which a fee is payable under this Act or the rules made thereunder shall be of no effect unless the fee has been paid. Provisions as to Registers and other Documents in the Patent Office.

Notice of trust not to be entered in registers

There shall not be entered in any register kept under this Act, or be receivable by the Controller, any notice of any trust expressed, implied or constructive.

Inspection of and extracts from registers

Every register kept under this Act shall at all convenient times be open to the inspection of the public, subject to the provisions of this Act; and certified copies, sealed with the seal of the Patent Office, of any entry in any such register shall be given to any person requiring the same on payment of the prescribed fee:

Provided that where such register is maintained wholly or partly on computer, the inspection of such register under this section shall be made by inspecting the computer print out of the relevant entry in the register so maintained on computer.

Privilege of reports of Controller

Reports of or to the Controller made under this Act other than the report referred to in section 45 shall not in any case be published or be open to public inspection.

Prohibition and publication of specification, drawings, etc. where application abandoned, etc.

Where an application for a design has been abandoned or refused, the application and any drawings, photographs, tracings, representations or specimens left in connection with the application shall not at any time be open to public inspection or be published by the Controller.

Power of Controller to correct clerical errors

The Controller may, on request in writing accompanied by the prescribed fee correct any clerical error in the representation of a design or in the name or address of the proprietor of any design, or in any other matter, which is entered upon the register of designs.

Entry of assignment and transmissions in registers

(1) Where a person becomes entitled by assignments, transmission or other operation of law to the copyright in a registered design, he may make application in the prescribed form to the Controller to register his title, and the Controller shall, on receipt of such application and on proof of title to his satisfaction, register him as the proprietor of such design, and shall cause an entry to be made in the prescribed manner in the register of the assignment, transmission or other instrument affecting the title. (2) Where any person becomes entitled as mortgage, licensee or otherwise to any interest in a registered design, he may make application to the Controller to register his title, and the Controller shall, on receipt of such application and on proof of title to his satisfaction, cause notice of the interest to be entered in the prescribed manner in the register of designs, with particulars of the instrument, if any, creating such interest. (3) For the purposes of sub-section ( 1 ) or sub-section ( 2 ) an assignment of a design or of a share in a design, a mortgage, licence or the creation of any other interest in a design shall not be valid unless the same were in writing and the agreement between the parties concerned is reduced to the form of an instrument embodying all the terms and conditions governing their rights and obligation and the application for registration of title under such instrument is filed in the prescribed manner with the Controller within six months from the execution of the instrument or within such further period not exceeding six months in the aggregate as the Controller on application made in the prescribed manner allows: Provided that the instrument shall, on entry of its particulars in the register under sub- section ( 1 ) or sub-section ( 2 ), have the effect from the date of its execution. (4) The person registered as the proprietor of a design shall, subject to the provisions of this Act and to any rights appearing from the register to be vested in any other person, have power absolutely to assign, grant licenses as to, or otherwise deal with, the design and to give effectual receipts for any consideration for any such assignment, licence or dealing: Provided that any equities in respect of the design may be enforced in like manner as in respect of any other moveable property. (5) Except in the case of an application made under section 31, a document or instrument in respect of which no entry has been made in the register in accordance with the provisions of sub-sections ( 1 ) and ( 2 ) shall not be admitted in evidence in any court in proof of the title to copyright in a design or to any interest therein, unless the court, for reasons to be recorded in writing, otherwise directs.

Rectification of register

(1) The Controller may, on the application in the prescribed manner of any person aggrieved by the non-insertion in or omission from the register of designs of any entry, or by any entry made in such register without sufficient cause, or by any entry wrongly remaining on such register, or by an error or defect in any entry in such register, make such order for making, expunging or varying such entry as he thinks fit and rectify the register accordingly. (2) The Controller may in any proceeding under this section, decide any question that may be necessary or expedient to decide in connection with the rectification of a register. (3) An appeal shall lie to the High Court from any order of the Controller under this section; and the Controller may refer any application under this section to the High Court for decision, and the High Court shall dispose of any application so referred. (4) Any order of the Court rectifying a register shall direct that notice of the rectification be served on the Controller in the prescribed manner who shall upon the receipt of such notice rectify the register accordingly. (5) Nothing in this section, shall be deemed to empower the Controller to make any such order canceling the registration of a design as is provided for in section 19.

CHAPTER VII

POWERS AND DUTIES OF CONTROLLER

Powers of controller in proceedings under act.

Subject to any rules in this behalf, the Controller in any proceedings before him under this Act s hall have the powers of a civil court for the purpose of receiving evidence, administering oaths, enforcing the attendance of witnesses, compelling the discovery and production of under documents, issuing commissions for the examining of witnesses and awarding costs and such award shall be executable in any court having jurisdiction as if it were a decree of that court.

Exercise of discretionary power by Controller

Where any discretionary power is by or under this Act given to Controller, he shall not exercise that power adversely to the applicant for registration of a design without (if so required within the prescribed time by the applicant) giving the applicant an opportunity of being heard.

Power of Controller to take directions of the Central Government

The Controller may, in any case of doubt or difficulty arising in the administration of any of the provisions of this Act, apply to the Central Government for directions in the matter.

Refusal to register a design in certain cases

(1) The Controller may refuse to register a design of which the use would, in his opinion, be contrary to public order or morality. (2) An appeal shall lie to the High Court from an order of the Controller under this section.

Appeals to High Court

(1) Where an appeal is declared by this Act to lie from the Controller to the High Court, the appeal shall be made within three months of the date of the order passed by the Controller. (2) In calculating the said period of three months, the time (if any) occupied in granting a copy of the order appealed against shall be excluded. (3) The High Court may, if it thinks fit, obtain the assistance of an expert in deciding such appeals, and the decision of the High Court shall be final. (4) The High Court my make rules consistent with this Act as to the conduct and procedure of all proceedings under this Act before it.

CHAPTER VIII EVIDENCE, ETC. SECTION 37

Evidence before the Controller

Subject to any rules made under section 44, in any proceeding under this before the Controller, the evidence shall be given by affidavit in the absence of directions by the Controller to the before the contrary; but in any case in which the Controller thinks it right so to do he may to take evidence viva voce in lieu of or in addition to evidence by affidavit or may allow any party to be cross examined on the contents of his affidavit.

Certificate of Controller to be evidence

A certificate purporting to be under the hand of the Controller as to entry, matter or thing which he is authorized by this Act, or any rules made thereunder to make or do, shall be prima-facie evidence of the entry having been made, and of the contents thereof, and of the matter or thing having been done or left undone.

Evidence of documents in patent office

Printed or written copies or extracts, purporting to be certified by Controller and sealed with the seal of the Patent Office , of documents in the Patent Office , and of or from registers and other books kept there, shall be admitted in evidence in all courts in India, and in all proceedings, Office without further proof for production of the originals: Provided that a court may, if it has reason to doubt the accuracy or authenticity of the copies tendered in evidence, require the production of the originals or such further proof as it considers necessary.

Applications and notices by post

Any application, notice or other document authorized or required to be left, made or given at the Patent Office or to the Controller, or to any other person under this Act, may be sent by post.

Declaration by infant, lunatic, etc.

(1) If any person, is by reason of infancy, Lunacy or other disability, incapable of making any statement or doing anything required or permitted by or under this Act, the lawful guardian, committee or manager (if any) of the person subject to the disability, or, if there be none, any person appointed by any court possessing jurisdiction in respect of his property , may make such statement or a statement as nearly corresponding thereto as circumstances permit, and do such thing in the name and on behalf of the person subject to the disability. (2) An appointment may be made by the court for the purposes of this section upon the petition of any person acting on behalf of the person subject to the disability or of any person interested in the making of the statement or the doing of the thing.

Avoidance of certain restrictive conditions

(1) It shall not be lawful to insert- (i) in any contract for or in relation to the sale or lease of an article in respect of which a design is registered; or (ii) in a licence to manufacture or use an article in respect of which a design is registered; or (iii) in a licence to package the article in respect of which a design is registered, a condition the effect of which may be- (a) to require the purchaser, lessee, or licensee to acquire from the vendor, lessor, or licensor or his nominees, or to prohibit him from acquiring or to restrict I in any manner or to any extent his right to acquire from any person or to prohibit him from acquiring except from the vendor, lessor, or licensor or his nominees any article other than the article in respect of which a design is registered; or (b) to prohibit the purchaser, lessee or licensee from using or to restrict in any manner or to any extent the right of the purchaser, lessee or licensee, to use an article other than the article in respect of which a design is registered which is not supplied by the vendor, lessor or licensor or his nominee, and any such condition shall be void. (2) A condition of the nature referred to in clause ( a ) or clause ( b ) of sub-section ( 1 ) shall not cease to be a condition failing within that sub-section merely by reason of the fact that the agreement containing it has been entered into separately, whether before or after the contract relating to the sale, lease or licence of the article in respect of which a design is registered. (3) In proceeding against any person for any act in contravention of section 22, it shall be a defence to prove that at the time of such contravention there was in force a contract relating to the registered design and containing a condition declared unlawful by this section: Provided that this sub-section shall not apply if the plaintiff is not a party to the contract and proves to the satisfaction of the court that the restrictive condition was inserted in the contract without his knowledge and consent, express or implied. (4) Nothing in this section shall- (a) affect a condition in a contract by which a person is prohibited from selling goods other than those of particular person; (b) validate a contract which, but for this section, would be invalid; (c) affect a condition in a contract for the lease of, or licence to use, an article in respect of which a design is registered, by which the lessor or licensor reserves to himself or his nominee the right to supply such new parts of the article, in respect of which a design is registered, as may be required or to put or keep it in repair; (5) The provisions of this section shall also apply to contracts made before the commencement of this Act if, and in so far as, any restrictive conditions declared unlawful by this section continue in force after the expiration of one year from such commencement.

CHAPTER IX AGENCY SECTION 43

(1) All applications and communications to the Controller under this Act may be signed by, and all attendances upon the Controller may be made by or through a legal practitioner or by or through an agent whose name and address has been entered in the register of patent agents maintained under section 125 of the Patents Act, 1970 (39 of 1970). (2) The Controller may, if he sees fit, require - (a) any such agent to be resident in India; (b) any person not residing in India either to employ an argent residing in India; (c) the personal signature or presence of any applicant or other person.

POWERS, ETC., OF CENTRAL GOVERNMENT

Reciprocal arrangement with the united kingdom and other convention countries or group of countries or inter-governmental organizations.

(1) Any person who has applied for protection for any design in the United Kingdom or any of other convention countries or group of countries or countries which are members of inter-governmental organizations, or his legal representative or assignee shall, either alone or jointly with any other person, be entitled to claim that the registration of the said design under this Act shall be in priority to other applicants and shall have the same date as the date of the application in the United Kingdom or any of such other convention countries or group of countries or countries which are members of inter-governmental organizations, as the case may be: Provided that- (a) the application is made within six months from the application for protection in the United Kingdom or any of such other convention Countries or group of countries or countries which are members of inter-governmental organisations, as the case may be; and (b) nothing in this section shall entitle the proprietor of the design to recover damages for piracy of design, design happening prior to the actual date on which the design is registered in India. (2) The registration of a design shall not be invalidated by reason only of the exhibition or use of or the publication of a description or representation of the design in India during the period specified in this section as that within which the application may be made; (3) The application for registration of a design of a design under this section must be made in the same manner as an ordinary application under this Act. (4) Where it is made to appear to the Central Government that the legislature of the United Kingdom or any such other convention country or a country which is member of any group of countries or inter-governmental organisation as may be notified by the Central Government in this behalf has made satisfactory provision for the protection of designs registered in India, the Central Government may, by notification in the Official Gazette, direct that the provisions of this section, with such variations or additions, if any, as may be set out in such notification, shall apply for the protection of designs registered in the United Kingdom or that other convention country or such country which is member of any group of countries or intergovernmental organisation, as the case may be.

Explanation- (1) For the purposes of this section, the expression “convention countries”, “group of countries” or “inter-governmental organisation” means, respectively, such countries, group of countries or inter-governmental organisation to which the Paris

Convention for Protection of Industrial Property, 1883 as revised at Stockholm in 1967 and as amended in 1979 or the Final Act, embodying the results of the Uruguay Round of Multilateral Trade Negotiations, provided for the establishment of World Trade Organisation applies.

Explanation- (2) Where more than one application for protection referred to in sub- section ( 1 ) have been made for similar protections in the United Kingdom or one or more convention countries, group of countries or countries which are members of inter-governmental organisations, the period of six months referred to in clause ( a ) of that sub-section, shall be reckoned from the date of which the earlier or the earliest application , as the case may be, of such applications has been made.

Report of the Controller to be placed before Parliament

The Central Government shall cause to be placed before both Houses of Parliament once a year a report respecting the execution of this Act by or under the Controller.

Protection of security of India

Notwithstanding anything contained in this Act, the Controller shall- (a) Not disclose any information relating to the registration of a design or any application relating to the registration of a design under this Act, which he considers prejudicial to the interest of the security of India; and (b) take any action regarding the cancellation of registration of such designs registered under this Act which the Central Government may, by notification in the Official Gazette, specify in the interest of the interest of the security of India.

Explanation: - For the purposes of this section, the expression “security of India” means any action necessary for the security of Indian which relates to the application of any design registered under this Act to any article used for war or applied directly or indirectly for the purposes of military establishment or for the purposes of war or other emergency in international relations.

Power of Central Government to make rules

(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act. (2) In particular, and without prejudice to the generally of the forgoing power, such rules may provide for all or any of the following matters, namely:- (a) the form of application, the manner of filing it at the Patent Office and the fee to be accompanied with it, under sub-section ( 2 ) of section 5; (b) the time within which the registration is to be effected under subsection ( 5 ) of section 5; (c) the classification of articles for registration under sub-section (1)of section 6; (d) the particulars of design to be published and the manner of their publication under section 7; (e) the manner of making claim under sub-section ( 1 ) of section 8; (f) the manner of making application to the Controller under subsection (5) of section 8; (g) the additional matters required to be entered in the register of design and safegurard to be made in maintaining such register in computer floppies or diskettes under sub-section (1) of section 10. (h) the manner of making application and fee to be paid for extension of the period of copy right and the fee payable thereto, under sub-section ( 2 ) of section 11; (i) the manner of making application for restoration of design and the fee to be paid with it under sub-section ( 1 ) of section 12; (j) the manner of verification of statement contained in an application under sub-section ( 2 ) of section 12; (k) the additional fee to be paid for restoration of the registration of design under sub-section ( 1 ) of section 13; (l) the provisions subject to which the right of the registered proprietor shall be under sub-section ( 1 ) of section 14; (m) the number of exact representation or specimen of the design to be furnished to the Controller under clause ( a ) of sub-section ( 1 ) of section 15; (n) the mark, words or figures with which the article is to be marked denoting that the design is registered under clause (b) of sub-section ( 1 ) of section 15; (o) the rules to dispense with or modify as regards any class or description of articles any of the requirements of section 15 as tomarking under sub-section ( 2 ) of that section; (p) the fee to be paid for and the manner of inspection under subsection ( 1 ) of section 17; (q) the fee to be paid to obtain a certified copy of any design under sub-section ( 2 ) of section 17; (r) the fee on payment of which the Controller shall inform under section 18; (s) the form for giving notice to the Controller under clause ( a ) of the proviso to section 21; (t) the fee to be paid in respect of the registration of designs, and application therefor, and in respect of other matters relating to designs under sub-section ( 1 ) of section 24; (u) the fee to be paid for giving certified copy of any entry in the register under section 26; (v) the fee to be accompanied with request in writing for correcting any clerical error under section 29; (w) the form in which an application for registration as proprietor shall be made and the manner in which the Controller shall cause an entry to be made in the register of the assignment, transmission or other instruments effecting the title under sub-section ( 1 ) of section 30; (x) the form in which an application for title shall be made and the manner in which the Controller shall cause notice of the interest to be entered in the register of designs with particulars of the instrument, if any, creating such interest under sub-section ( 2 ) of section 30; (y) the manner of filing an application for registration and for making application for extension of time as referred to in subsection ( 3 ) of section 30; (z) the manner of making application to the Controller for rectification of register under sub-section ( 1 ) of section 31; (za) the manner in which the notice of rectification shall be served on the Controller under sub-section ( 4 ) of section 31; (zb) the rules regulating the proceedings before the Controller under section 32; (zc) the time which shall be granted to the applicants for being heard by the Controller under section 33; (zd) the fee to be accompanied with an appeal under sub-section ( 1 )of section 36; (ze) any other matter which is required to be, or may be, prescribed. ( 3 ) The power to make rules under this section shall be subject to the conditions of the rules being made after previous publication. (4) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive session aforesaid, both House agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that Act.

REPEAL AND SAVINGS

Repeal and savings

(1) The Designs Act, 1911 (2 of 1911) is hereby repealed. (2) Without prejudice to the provisions contained in the General Clauses Act, 1897 (10 of 1987) with respect to repeals, any notification, rule, order, requirement, registration, certificate, notice, decision, determination, direction, approval, authorisation, consent, application , request or thing made , issued, given or done under the Designs Act, 1911 (2 of 1911), shall, in force at the commencement of this Act , continue to be in force and have effect as if made , issued , given or done under the corresponding provisions of this Act. (3) The provisions of this Act shall apply to any application for registration of design pending at the commencement of this Act and to any proceedings consequent thereon and to any registration granted in pursuance thereof. (4) Notwithstanding anything contained in this Act, any proceeding pending in any court at the commencement of this Act may be continued in that court as if this Act has not been passed. (5) Notwithstanding anything contained in sub-section ( 2 ), the date of expiration of the copyright in the design registered before the commencement of this Act shall, subject to the provisions of this Act, be the date immediately after the period of five years for which it was registered or the date immediately after the period of five years for which the extension of the period of copyright for a second period from the expiration of the original period has been made.

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The Designs Act, 2000 (Act No. 16 of 2000), India

Available materials.

The Designs Act, 2000

No. 16 of 2000 (25 th May, 2000)

TABLE OF CONTENTS

Chapter I: Preliminary

Short Title, Extent and Commencement 1

Definitions 2

Chapter II: Registration of Designs

Controller and Other Officers 3

Prohibition of Registration of Certain Designs 4

Application for Registration of Designs 5

Registration to be in Respect of Particular Article 6

Publication Particulars of Registered Designs 7

Power of Controller to Make Orders Regarding Substitution of Application, etc 8

Certificate of Registration 9

Chapter III: Copyright in Registered Designs

Restoration of Lapsed Designs 12

Procedure for Disposal of Applications for Restoration of Lapsed Designs 13

Rights of Proprietor of Lapsed Design which have been Restored 14

Requirements Before Delivery on Sales 15

Effect of Disclosure on Copyright 16

Inspection of Registered Designs 17

Information as to Existence of Copyright 18

Cancellation of Registration 19

Designs to Bind Government 20

Chapter IV: Industrial and International Exhibitions

Provisions as to Exhibitions 21

Chapter V: Legal Proceedings

Piracy of Registered Design 22

Application of Certain Provisions of the Act as to Patents to Designs 23

Chapter VI: General

Provisions as to Registers and Other Documents in the Patent Office

Notice of Trust not to be Entered in Registers 25

Inspection of and Extracts from Registers 26

Privilege of Reports of Controller 27

Prohibition and Publication of Specification, Drawings, etc where Application Abandoned, etc 28

Power of Controller to Correct Clerical Errors 29

Entry of Assignment and Transmissions in Registers 30

Rectification of Register 31

Chapter VII: Powers and Duties of Controller

Power of Controller in Proceedings under Act 32

Exercise of Discretionary Power by Controller 33

Power of Controller to Take Directions of the Central Government 34

Refusal to Register a Design in Certain Cases 35

Appeals to the High Court 36

Chapter VIII: Evidence, etc.

Evidence Before the Controller 37

Certificate of Controller to be Evidence 38

Evidence of Documents in Patent Office 39

Applications and Notices by Post 40

Declaration by Infant Lunatic, etc 41

Avoidance of Certain Restrictive Conditions 42

Chapter IX: Agency

Chapter X: Powers, etc. of Central Government

Reciprocal Arrangement with the United Kingdom and Other Convention Countries or Group of Countries or Inter-Governmental Organisations 44

Report of the Controller to be Placed before Parliament 45

Provision of Security of India 46

Power of Central Government to Make Rules 47

Chapter XI: Repeal and Saving

Repeal and Savings 48

An Act to consolidate and amend the law relating to protection of designs.

BE it enacted by Parliament in the Fifty-first Year of the Republic of India as follows:-

CHAPTER I PRELIMINARY

Short Title, Extent and Commencement

1. -(1) This Act may be called the Designs Act, 2000.

(2) It extends to the whole of India.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different provisions of this Act, and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.

Definitions

2. In this Act, unless there is anything repugnant in the subject or context.

(a) "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;

(b) "Controller" means The Controller-General of Patents, Designs and Trade Marks referred to in section 3;

(c) "copyright" means the exclusive right to apply a design to any article in any class in which the design is registered;

(d) "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, 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 or 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.

[43 of 1958, 45 of 1860, 14 of 1957]

(e) "High Court" shall have the same meaning as assigned to it in clause (i) of section 2 of the Patents Act, 1970;

[39 of 1970]

(f) "legal representative" means a person who in law represents the estate of a deceased person;

(g) "original", in relation to a design, means originating from the author of such design and includes the cases which though old in themselves yet are new in their application;

(h) "Patent Office" means the patent office referred to in section 74 of the Patents Act, 1970.

(i) "prescribed" means prescribed by rules made under this Act;

(j) "proprietor of a new or original design",-

(i) where the author of the design, for good consideration, executes the work for some other person, means the person for whom the design is so executed;

(ii) where any person acquires the design or the right to apply the design to any article, either exclusively of any other person or otherwise, means, in the respect and to the extent in and to which the design or right has been so acquired, the person by whom the design or right is so acquired; and

(iii) in any other case, means the author of the design; and where the property in or the right to apply, the design has devolved from the original proprietor upon any other person, includes that other person.

CHAPTER II REGISTRATION OF DESIGNS

Controller and Other Officers

3. -(1) The Controller General of Patents, Designs and Trade Marks appointed under sub-section (1) of section 4 of the Trade and Merchandise Marks Act, 1958 shall be the Controller of Designs for the purposes of this Act.

[43 of 1958]

(2) For the purposes of this Act, the Central Government may appoint as many examiners and other officers and with such designations, as it thinks fit.

(3) Subject to the provisions of this Act, the officers appointed under sub-section (2) shall discharge under the superintendence and directions of the Controller such functions of the Controller under this Act as he may, from time to time, by general or special order in writing, authorise them to discharge.

(4) Without prejudice to the generality of the provisions of sub-section (3), the Controller may by order in writing and for reasons to be recorded therein, withdraw any matter pending before an officer appointed under sub-section (2) and deal with such matter himself either de novo or from the stage it was so withdrawn or transfer the same to another officer appointed under sub-section (2) who may, subject to special directions in the order of transfer, proceed with the matter either de novo or from the stage it was so transferred.

Prohibition of Registration of Certain Designs

4. A design which-

(a) is not new or original; or

(b) 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; or

(d) comprises or contains scandalous or obscene matter,

shall not be registered.

Application for Registration of Designs

5. -(1) The Controller may, on the application of any person claiming to be the proprietor of any new or original design not previously published in any registration country and which is not contrary to public order or morality, register the design under this Act:

Provided that the Controller shall before such registration refer the application for examination, by an examiner appointed under sub-section (2) of section 3, as to whether such design is capable of being registered under this Act and the rules made thereunder and consider the report of the examiner on such reference.

(2) Every application under sub-section (1) shall be in the prescribed form and shall be filed in the patent office in the prescribed manner and shall be accompanied by the prescribed fee.

(3) A design may be registered in not more than one class, and, in case of doubt as to the class in which a design ought to be registered, the Controller may decide the question.

(4) The Controller may, if he thinks fit, refuse to register any design presented to him for registration; but any person, aggrieved by any such refusal may appeal to the High Court.

(5) An application which, owing to any default or neglect on the part of the applicant, has not been completed so as to enable registration to be effected within the prescribed time shall be deemed to be abandoned.

(6) A design when registered shall be registered as of the date of the application for registration.

Registration to be in Respect of Particular Article

6. -(1) A design may be registered in respect of any or all of the articles comprised in a prescribed class of articles.

(2) Any question arising as to the class within which any article falls shall be determined by the Controller whose decision in the matter shall be final.

(3) Where a design has been registered in respect of any article comprised in a class of article, the application of the proprietor of the design to register it in respect of some one or more other articles comprised in that class of articles shall not be refused, nor shall the registration thereof invalidated-

(a) on the ground of the design not being a new or original design, by reason only that it was so previously registered; or

(b) on the ground of the design having been previously published in India or in any other country, by reason only that it has been applied to article in respect of which it was previously registered:

Provided that such subsequent registration shall not extend the period of copyright in the design beyond that arising from previous registration.

(4) Where any person makes an application for the registration of a design in respect of any article and either-

(a) that design has been previously registered by another person in respect of some other article; or

(b) the design to which the application relates consists of a design previously registered by another person in respect of the same or some other article with modifications or variations not sufficient to alter the character or substantially to affect the identity thereof,

then, if at any time while the application is pending the applicant becomes the registered proprietor of the design previously registered, the foregoing provisions of this section shall apply as if at the time of making the application, the applicant, had been the registered proprietor of that design.

Publication Particulars of Registered Designs

7. The Controller shall, as soon as may be after the registration of a design, cause publication of the prescribed particulars of the design to be published in such manner as may be prescribed and thereafter the design shall be open to public inspection.

Power of Controller to Make Orders Regarding Substitution of Application, etc

8. -(1) If the Controller is satisfied on a claim made in the prescribed manner at any time before a design has been registered that by virtue of any assignment or agreement in writing made by the applicant or one of the applicants for registration of the design or by operation of law, the claimant would, if the design were then registered, be entitled thereto or to the interest of the applicant therein, or to an undivided share of the design or of that interest, the Controller may, subject to the provisions of this section, direct that the application shall proceed in the name of the claimant or in the names of the claimants and the applicant or the other joint applicant or applicants, accordingly, as the case may require.

(2) No such direction as aforesaid shall be given by virtue of any assignment or agreement made by one of two or more joint applicants for registration of a design except with the consent of the other joint applicant or applicants.

(3) No such direction as aforesaid shall be given by virtue of any assignment or agreement for the assignment of the benefit of a design unless-

(a) the design is identified therein by reference to the number of the application for the registration; or

(b) there is produced to the Controller an acknowledgement by the person by whom the assignment or agreement was made that the assignment or agreement relates to the design in respect of which that application is made; or

(d) the Controller gives directions for enabling the application to proceed or for regulating the manner in which it should be proceeded with under sub-section (5).

(4) Where one of two or more joint applicants for registration of a design dies at any time before the design has been registered, the Controller may, upon a request in that behalf made by the survivor or survivors, and with the consent of the legal representative of the deceased, direct that the application shall proceed in the name of the survivor or survivors alone.

(5) If any dispute arises between joint applicants for registration of a design whether or in what manner the application should be proceeded with, the Controller may, upon application made to him in the prescribed manner by any of the parties, and after giving to all parties concerned an opportunity to be heard, give such directions as he thinks fit for enabling the application to proceed in the name of one or more of the parties alone or for regulating the manner in which it should be proceeded with, or for both those purposes, as the case may require.

Certificate of Registration

9. -(1) The Controller shall grant a certificate of registration to the proprietor of the design when registered.

(2) The Controller may, in case of loss of the original certificate, or in any other case in which he deems it expedient, furnish one or more copies of the certificate.

10. -(1) There shall be kept at the patent office a book called the register of designs, wherein shall be entered the names and addresses of proprietors of registered designs, notifications of assignments and of transmissions of registered designs, and such other matter as may be prescribed and such register may be maintained wholly or partly on computer floppies or diskettes, subject to such safeguards as may be prescribed.

(2) Where the register is maintained wholly or partly on computer floppies or diskettes under sub-section (1), any reference in this Act to any entry in the register shall be construed as the reference to the entry so maintained on computer floppies or diskettes.

(3) The register of designs existing at the commencement of this Act shall be incorporated with and form part of the register of designs under this Act.

(4) The register of designs shall be prima facie evidence of any matter by this Act directed or authorized to be entered therein.

CHAPTER III COPYRIGHT IN REGISTERED DESIGNS

11. -(1) When a design is registered, the registered proprietor of the design shall, subject to the provisions of this Act, have copyright in the design during ten years from the date of registration.

(2) If, before the expiration of the said ten years, application for the extension of the period of copyright is made to the Controller in the prescribed manner, the Controller shall, on payment of the prescribed fee, extend the period of copyright for a second period of five years from the expiration of the original period of ten years.

Restoration of Lapsed Designs

12. -(1) Where a design has ceased to have effect by reason of failure to pay the fee for the extension of copyright under sub-section (2) of section 11, the proprietor of such design or his legal representative and where the design was held by two or more persons jointly, then, with the leave of the Controller one or more of them without joining the others, may, within one year from the date on which the design ceased to have effect, make an application for the restoration of the design in the prescribed manner on payment of such fee as may be prescribed.

Procedure for Disposal of Applications for Restoration of Lapsed Designs

13. -(1) If, after hearing the applicant in cases where the applicant so desires or the Controller thinks fit, the Controller is satisfied that the failure to pay the fee for extension of the period of copyright was unintentional and that there has been no undue delay in the making of the application, the Controller shall upon payment of any unpaid fee for extension of the period of copyright together with prescribed additional fee restore the registration of design.

(2) The Controller may, if he thinks fit as a condition of restoring the design, require that any entry shall be made in the register of any document or matter which under the provisions of this Act, has to be entered in the register but which has not been so entered.

Rights of Proprietor of Lapsed Design which have been Restored

14. -(1) Where the registration of a design is restored, the rights of the registered proprietor shall be subject to such provisions as may be prescribed and to such other provisions as the Controller thinks fit to impose for the protection or compensation of persons who may have begun to avail themselves of, or have taken definite steps by contract or otherwise to avail themselves of, the benefit of applying the design between the date when the registration of the design ceased to have effect and the date of restoration of the registration of the design.

(2) No suit or other proceeding shall be commenced in respect of piracy of a registered design or infringement of the copyright in such design committed between the date on which the registration of the design ceased to have effect and the date of the restoration of the design.

Requirements Before Delivery on Sales

15. -(1) Before delivery on sale of any articles to which a registered design has been applied, the proprietor shall-

(a) (if exact representations or specimens were not furnished on the application for registration) furnish to the Controller the prescribed number of exact representations or specimens of the design; and, if he fails to do so, the Controller may, after giving notice thereof to the proprietor, erase his name from the register and thereupon the copyright in the design shall cease; and

(b) cause each such article to be marked with the prescribed mark, or with the prescribed words or figures denoting that the design is registered; and, if he fails to do so, the proprietor shall not be entitled to recover any penalty or damages in respect of any infringement of his copyright in the design unless he shows that he took all proper steps to ensure the marking of the article, or unless he shows that the infringement took place after the person guilty thereof knew or had received notice of the existence of the copyright in the design.

(2) Where a representation is made to the Central Government by or on behalf of any trade or industry that in the interest of the trade or industry it is expedient to dispense with or modify as regards any class or description of articles any of the requirements of this section as to marking, the Central Government may, if it thinks fit, by rule under this Act, dispense with or modify such requirements as regards any such class or description of articles to such extent and subject to such conditions as it thinks fit.

Effect of Disclosure on Copyright

16. The disclosure of a design by the proprietor to any other person, in such circumstances as would make it contrary to good faith for that other person to use or publish the design, and the disclosure of a design in breach of good faith by any person, other than the proprietor of the design, and the acceptance of a first and confidential order for articles bearing a new or original textile design intended for registration, shall not be deemed to be a publication of the design sufficient to invalidate the copyright thereof if registration thereof is obtained subsequently to the disclosure or acceptance.

Inspection of Registered Designs

17. -(1) During the existence of copyright in a design, any person on furnishing such information as may enable the Controller to identify the design and on payment of the prescribed fee may inspect the design in the prescribed manner.

(2) Any person may, on an application to the Controller and on payment of such fee as may be prescribed, obtain a certified copy of any registered design.

Information as to Existence of Copyright

18. On the request of any person furnishing such information as may enable the Controller to identify the design, and on payment of the prescribed fee, the Controller shall inform such person whether the registration still exists in respect of the design, and, if so, in respect of what classes of articles, and shall state the date of registration, and the name and address of the registered proprietor.

Cancellation of Registration

19. -(1) Any person interested may present a petition for the cancellation of the registration of a design at any time after the registration of the design, to the Controller on any of the following grounds, namely:-

(a) that the design has been previously registered in India; or

(b) that it has been published in India or in any other country prior to the date of registration; or

(d) that the design is not registrable under this Act; or

(e) that it is not a design as defined under clause (d) of section 2.

(2) An appeal shall lie from any order of the Controller under this section to the High Court, and the Controller may at any time refer any such petition to the High Court, and the High Court shall decide any petition so referred.

Designs to Bind Government

20. A registered design shall have to all intents the like effect as against the Government as it has against any person and the provisions of Chapter XVII of the Patents Act, 1970 shall apply to registered designs as they apply to patents.

CHAPTER IV INDUSTRIAL AND INTERNATIONAL EXHIBITIONS

Provisions as to Exhibitions

21. The exhibition of a design, or of any article to which a design is applied, at an industrial or other exhibition to which the provisions of this section have been extended by the Central Government by notification in the Official Gazette, or the publication of a description of the design, during or after the period of the holding of the exhibition, or the exhibition of the design or the article or the publication of a description of the design by any person else-where during or after the period of the holding of the exhibition, without the privity or consent of the proprietor, shall not prevent the design from being registered or invalidate the registration thereof:

Provided that-

(a) the exhibitor exhibiting the design or article, or publishing a description of the design, gives to the Controller previous notice in the prescribed form; and

(b) the application for registration is made within six months from the date of first exhibiting the design or article or publishing a description of the design.

CHAPTER V LEGAL PROCEEDINGS

Piracy of Registered Design

22. -(I) During the existence of copyright in any design it shall not be lawful for any person-

(a) for the purpose of sale to apply or cause to be applied to any article in any class of articles in which the design is registered, the design or any fraudulent or obvious imitation thereof, except with the licence or written consent of the registered proprietor, or to do anything with a view to enable the design to be so applied; or

2.-(1) If any person acts in contravention of this section, he shall be liable for every contravention-

(a) to pay to the registered proprietor of the design a sum not exceeding twenty-five thousand rupees recoverable as a contract debt, or

(b) if the proprietor elects to bring a suit for the recovery of damages for any such contravention, and for an injunction against the repetition thereof, to pay such damages as may be awarded and to be restrained by injunction accordingly:

Provided that the total sum recoverable in respect of any one design under clause (a) shall not exceed fifty thousand rupees:

Provided further that no suit or any other proceeding for relief under this sub-section shall be instituted in any court below the court of District Judge.

(3) In any suit or any other proceeding for relief under sub-section (2), every ground on which the registration of a design may be cancelled under section 19 shall be available as a ground of defence.

(4) Notwithstanding anything contained in the second proviso to sub-section (2), where any ground on which the registration of a design may be cancelled under section 19 has been availed of as a ground of defence and sub-section (3) in any suit or other proceeding for relief under sub-section (2), the suit or such other proceeding shall be transferred by the court in which the suit or such other proceeding is pending, to the High Court for decision.

(5) When the court makes a decree in a suit under sub-section (2), it shall send a copy of the decree to the Controller, who shall cause an entry thereof to be made in the register of designs.

Application of Certain Provisions of the Act as to Patents to Designs

23. The provisions of the Patents Act, 1970 with regard to certificates of the validity of a patent, and to the remedy in case of groundless threats of legal proceedings by a patentee shall apply in the case of registered designs in like manner as they apply in the case of patents, with the substitution of references to the copyright in a design for reference to a patent, and of references to the proprietor of a design for references to the patentee, and of references to the design for references to the invention.

CHAPTER VI G ENERAL

24. -(1) There shall be paid in respect of the registration of designs and applications therefor and in respect of other matters relating to designs under this Act such fees may be prescribed.

(2) A proceeding in respect of which a fee is payable under this Act or the rules made thereunder shall be of no effect unless the fee has been paid.

Notice of Trust not to be Entered in Registers

25. There shall not be entered in any register kept under this Act, or be receivable by the Controller, any notice of any trust expressed, implied or constructive.

Inspection of and Extracts from Registers

26. Every register kept under this Act shall at all convenient times be open to the inspection of the public, subject to the provisions of this Act; and certified copies, sealed with the seal of the patent office, of any entry in any such register shall be given to any person requiring the same on payment of the prescribed fee:

Privilege of Reports of Controller

27. Reports of or to the Controller made under this Act other than the report referred to in section 45 shall not in any case be published or be open to public inspection.

Prohibition and Publication of Specification, Drawings, etc where Application Abandoned, etc

28. Where an application for a design has been abandoned or refused, the application and any drawings, photographs, tracings, representations or specimens left in connection with the application shall not at any time be open to public inspection or be published by the Controller.

Power of Controller to Correct Clerical Errors

29. The Controller may, on request in writing accompanied by the prescribed fee, correct any clerical error in the representation of a design or in the name or address of the proprietor of any design, or in any other matter, which is entered upon the register of designs.

Entry of Assignment and Transmissions in Registers

30. -(1) Where a person becomes entitled by assignments, transmission or other operation of law to the copyright in a registered design, he may make an application in the prescribed form to the Controller to register his title, and the Controller shall, on receipt of such application and on proof of title to his satisfaction, register him as the proprietor of such design, and shall cause an entry to be made in the prescribed manner in the register of the assignment, transmission or other instrument affecting the title.

(2) Where any person becomes entitled as mortgagee, licensee or otherwise to any interest in a registered design, he may make an application in the prescribed form to the Controller to register his title, and the Controller shall, on receipt of such application and on proof of title to his satisfaction, cause notice of the interest to be entered in the prescribed manner in the register of designs, with particulars of the instrument, if any, creating such interest.

(3) For the purposes of sub-section (1) or sub-section (2), an assignment of a design or of a share in a design, a mortgage, licence or the creation of any other interest in a design shall not be valid unless the same were in writing and the agreement between the parties concerned is reduced to the form of an instrument embodying all the terms and conditions governing their rights and obligation and the application for registration of title under such instrument is filed in the prescribed manner with the Controller within six months from the execution of the instrument or within such further period not exceeding six months in the aggregate as the Controller on the application made in the prescribed manner allows:

Provided that the instrument shall, on entry of its particulars in the register under sub-section (1) or sub-section (2), have the effect from the date of its execution.

(4) The person registered as the proprietor of a design shall, subject to the provisions of this Act and to any rights appearing from the register to be vested in any other person, have power absolutely to assign, grant licences as to, or otherwise deal with, the design and to give effectual receipts for any consideration for any such assignment, licence or dealing:

Provided that any equities in respect of the design may be enforced in like manner as in respect of any other moveable property.

(5) Except in the case of an application made under section 31, a document or instrument in respect of which no entry has been made in the register in accordance with the provisions of sub-sections (1) and (2) shall not be admitted in evidence in any court in proof of the title to copyright in a design or to any interest therein, unless the court, for reasons to be recorded in writing, otherwise directs.

Rectification of Register

31. -(1) The Controller may, on the application in the prescribed manner of any person aggrieved by the non-insertion in or omission from the register of designs of any entry, or by any entry made in such register without sufficient cause, or by any entry wrongly remaining on such register, or by an error or defect in any entry in such register, make such order for making, expunging or varying such entry as he thinks fit and rectify the register accordingly.

(2) The Controller may, in any proceeding under this section decide any question that may be necessary or expedient to decide in connection with the rectification of a register.

(3) An appeal shall lie to the High Court from any order of the Controller under this section and the Controller may refer any application under this section to the High Court for decision, and the High Court shall dispose of any application so referred.

(4) Any order of the Court rectifying a register shall direct that notice of the rectification be served on the Controller in the prescribed manner who shall upon the receipt of such notice rectify the register accordingly.

(5) Nothing in this section, shall be deemed to empower the Controller to make any such order cancelling the registration of a design as is provided for in section 19.

CHAPTER VII POWERS AND DUTIES OF CONTROLLER

Power of Controller in Proceedings under Act

32. Subject to any rules made in this behalf, the Controller in any proceedings before him under this Act shall have the powers of a civil court for the purpose receiving evidence, administering oaths, enforcing the attendance of witnesses, compelling the discovery and production of documents, issuing commissions for the examining of witnesses and awarding costs and such award shall be executable in any court having jurisdiction as if it were a decree of that court.

Exercise of Discretionary Power by Controller

33. Where any discretionary power is by or under this Act given to Controller, he shall not exercise that power adversely to the applicant for registration of a design without (if so required within the prescribed time by the applicant) giving the applicant an opportunity of being heard.

Power of Controller to Take Directions of the Central Government

34. The Controller may, in any case of doubt or difficulty arising in the administration of any of the provisions of this Act, apply to the Central Government for directions in the matter.

Refusal to Register a Design in Certain Cases

35. -(1) The Controller may refuse to register a design of which the use would, in his opinion, be contrary to public order or morality.

(2) An appeal shall lie to the High Court from an order of the Controller under this section.

Appeals to the High Court

36. -(1) Where an appeal is declared by this Act to lie from the Controller to the High Court, the appeal shall be made within three months of the date of the order passed by the Controller.

(2) In calculating the said period of three months, the time (if any) occupied in granting a copy of the order appealed against shall be excluded.

(3) The High Court may, if it thinks fit, obtain the assistance of an expert in deciding such appeals, and the decision of the High Court shall be final.

(4) The High Court my make rules consistent with this Act as to the conduct and procedure of all proceedings under this Act before it.

CHAPTER VIII EVIDENCE, ETC.

Evidence Before the Controller

37. Subject to any rules made under section 44, in any proceeding under this Act before the Controller, the evidence shall be given by affidavit in the absence of directions by the Controller to the contrary; but in any case in which Controller thinks it right so to do he may take evidence viva voce in lieu of or in addition to evidence by affidavit or may allow any party to be cross examined on the contents of his affidavit.

Certificate of Controller to be Evidence

38. A certificate purporting to be under the hand of the Controller as to any entry, matter or thing which he is authorised by this Act, or any rules made thereunder to make or do, shall be prima-facie evidence of the entry having been made, and of the contents thereof, and of the matter or thing having been done or left undone.

Evidence of Documents in Patent Office

39. Printed or written copies or extracts, purporting to be certified by Controller and sealed with the seal of the patent office, of documents in the patent office, and of or from registers and other books kept there, shall be admitted in evidence in all courts in India, and in all proceedings, without further proof or production of the originals:

Provided that a court may, if it has reason to doubt the accuracy or authenticity of the copies tendered in evidence, require the production of the originals or such further proof as it considers necessary.

Applications and Notices by Post

40. Any application, notice or other document authorized or required to be left, made or given at the patent office or to the Controller, or to any other person under this Act, may be sent by post.

Declaration by Infant Lunatic, etc

41. -(1) If any person, is by reason of infancy, lunacy or other disability, incapable of making any statement or doing anything required or permitted by or under this Act, the lawful guardian, committee or manager (if any) of the person subject to the disability, or, if there be none, any person appointed by any court possessing jurisdiction in respect of his property, may make such statement or a statement as nearly corresponding thereto as circumstances permit, and do such thing in the name and on behalf of the person subject to the disability.

(2) An appointment may be made by the court for the purposes of this section upon the petition of any person acting on behalf of the person subject to the disability or of any other person interested in the making of the statement or the doing of the thing.

Avoidance of Certain Restrictive Conditions

42. -(1) It shall not be lawful to insert-

(i) in any contract for or in relation to the sale or lease of an article in respect of which a design is registered; or

(ii) in a licence to manufacture or use an article in respect of which a design is registered; or

(iii) in a licence to package the article in respect of which a design is registered,

condition the effect of which may be-

(a) to require the purchaser, lessee, or licensee to acquire from the vendor, lessor, or licensor or his nominees, or to prohibit him from acquiring or to restrict in any manner or to any extent his right to acquire from any person or to prohibit him from acquiring except from the vendor, lessor, or licensor or his nominees any article other than the article in respect of which a design is registered; or

(b) to prohibit the purchaser, lessee or licensee from using or to restrict in any manner or to any extent the right of the purchaser, lessee or licensee, to use an article other than the article in respect of which a design is registered which is not supplied by the vendor, lessor or licensor or his nominee,

and any such condition shall be void.

(2) A condition of the nature referred to in clause (a) or clause (b) of sub-section (1) shall not cease to be a condition failing within that sub-section merely by reason of the fact that the agreement containing it has been entered into separately, whether before or after the contract relating to the sale, lease or licence of the article in respect of which a design is registered.

(3) In proceeding against any person for any act in contravention of section 22, it shall be a defence to prove that at the time of such contravention there was in force a contract relating to the registered design and containing a condition declared unlawful by this section:

Provided that this sub-section shall not apply if the plaintiff is not a party to the contract and proves to the satisfaction of the court that the restrictive condition was inserted in the contract without his knowledge and consent, express or implied.

(4) Nothing in this section shall-

(a) affect a condition in a contract by which a person is prohibited from selling goods other than those of particular person;

(b) validate a contract which, but for this section, would be invalid;

(c) affect a condition in a contract for the lease of, or licence to use, an article in respect of which a design is registered, by which the lessor or licensor reserves to himself or his nominee the right to supply such new parts of the article, in respect of which a design is registered, as may be required or to put or keep it in repair.

(5) The provisions of this section shall also apply to contracts made before the commencement of this Act if, and in so far as, any restrictive conditions declared unlawful by this section continue in force after the expiration of one year from such commencement.

CHAPTER IX AGENCY

43. -(1) All applications and communications to the Controller under this Act may be signed by, and all attendances upon the Controller may be made by or through a legal practitioner or by or through an agent whose name and address had been entered in the register of patent agents maintained under section 125 of the Patents Act, 1970.

(2) The Controller may, if he sees fit, require-

(a) any such agent to be resident in India;

(b) any person not residing in India to employ an agent residing in India;

CHAPTER X POWERS, ETC. OF CENTRAL GOVERNMENT

Reciprocal Arrangement with the United Kingdom and Other Convention Countries or Group of Countries or Inter-Governmental Organisations

44. -(1) Any person who has applied for protection for any design in the United Kingdom or any of other convention countries or group of countries or countries which are members of inter-governmental organisations, or his legal representative or assignee shall, either alone or jointly with any other person, be entitled to claim that the registration of the said design under this Act shall be in priority to other applicants and shall have the same date as the date of the application in the United Kingdom or any of such other convention countries or group of countries or countries which are members of inter-governmental organisations, as the case may be:

(a) the application is made within six months from the application for protection in the United Kingdom or any such other convention countries or group of countries or countries which are members of inter-governmental organisations, as the case may be; and

(b) nothing in this section shall entitle the proprietor of the design to recover damages for piracy of design happening prior to the actual date on which the design is registered in India.

(2) The registration of a design shall not be invalidated by reason only of the exhibition or use of or the publication of a description or representation of the design in India during the period specified in this section as that within which the application may be made;

(3) The application for registration of a design under this section has been made in the same manner as an ordinary application under this Act.

(4) Where it is made to appear to the Central Government that the legislature of the United Kingdom or any such other convention country or a country which is member of any group of countries or inter-governmental organisation as may be notified by the Central Government in this behalf has made satisfactory provision for the protection of designs registered in India, the Central Government may, by notification in the Official Gazette, direct that the provisions of this section, with such variations or additions, if any, as may be set out in such notification, shall apply for the protection of designs registered in the United Kingdom or that other convention country or such country which is member of any group of countries or inter-governmental organisation, as the case may be.

Explanation -(1) For the purposes of this section, the expression "convention countries", "group of countries" or "inter-governmental organisation" means, respectively, such countries, group of countries or inter-governmental organisation to which the Paris Convention for Protection of Industrial Property, 1883 as revised at Stockholm in 1967 and as amended in 1979 or the Final Act, embodying the results of the Uruguay Round of Multilateral Trade Negotiations, provided for the establishment of World Trade Organisation applies.

Explanation -(2) Where more than one application for protection referred to in sub-section (1) have been made for similar protections in the United Kingdom or one or more convention countries, group of countries or countries which are members of inter-governmental organisations, the period of six months referred to in clause (a) of that sub-section, shall be reckoned from the date of which the earlier or the earliest application, as the case may be, of such applications has been made.

Report of the Controller to be Placed before Parliament

45. The Central Government shall cause to be placed before both Houses of Parliament once a year a report respecting the execution of this Act by or under the Controller.

Provision of Security of India

46. Notwithstanding anything contained in this Act, the Controller shall-

(a) not disclose any information relating to the registration of a design or any application relating to the registration of a design under this Act, which he considers prejudicial to the interest of the security of India; and

(b) take any action regarding the cancellation of registration of such designs registered under this Act which the Central Government may, by notification in the Official Gazette, specify in the interest of the security of India.

Explanation: -For the purposes of this section, the expression "security of India" means any action necessary for the security of Indian which relates to the application of any design registered under this Act to any article used for war or applied directly or indirectly for the purposes of military establishment or for the purposes of war or other emergency in international relations.

Power of Central Government to Make Rules

47. -(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a) the form of application for registration of design, the manner of filing it at the patent office and the fee which shall accompany it, under sub-section (2) of section 5;

(b) the time within which the registration is to be effected under sub-section (5) of section 5;

(d) the particulars of design to be published and the manner of their publication under section 7;

(e) the manner of making claim under sub-section (1) of section 8;

(f) the manner of making applications to the Controller under sub-section (5) of section 8;

(g) the additional matters required to be entered in the register of designs and the safeguards to be made in maintaining such register in computer floppies or diskettes under sub-section (1) of section 10.

(h) the manner of making application and fee to be paid for extension of the period of copyright and the fee payable thereto, under sub-section (2) of section 11;

(i) the manner of making application for restoration of design and the fee to be paid with it under sub-section (1) of section 12;

(j) the manner of verification of statement contained in an application under sub-section (2) of section 12;

(k) the additional fee to be paid for restoration of the registration of design under sub-section (1) of section 13;

(n( �/i> the provisions subject to which the right of the registered proprietor shall be under sub-section (1) of section 14;

(m) the number of exact representation or specimen of the design to be furnished to the Controller under clause (a) of sub-section (1) of section 15;

(n) the mark, words or figures with which the article is to be marked denoting that the design is registered under clause (b) of sub-section (1) of section 15;

(o) the rules to dispense with or modify as regards any class or description of articles and any of the requirements of section 15 as to marking under sub-section (2) of that section;

(p) the fee to be paid for and the manner of inspection under sub-section (1) of section 17;

(q) the fee to be paid to obtain a certified copy of any design under sub-section (2) of section 17;

(r) the fee on payment of which the Controller shall inform under section 18;

(s) the form for giving notice to the Controller under clause (a) of the proviso to section 21;

(t) the fee to be paid in respect of the registration of designs, and application therefor, and in respect of other matters relating to designs under sub-section (1) of section 24;

(u) the fee to be paid for giving certified copy of any entry in the register under section 26;

(v) the fee to be accompanied with requests in writing for correcting any clerical error under section 29;

(w) the form in which an application for registration as proprietor shall be made and the manner in which the Controller shall cause an entry to be made in the register of the assignment, transmission or other instrument effecting the title under sub-section (1) of section 30;

(x) the form in which an application for title shall be made and the manner in which the Controller shall cause notice of the interest to be entered in the register of designs with particulars of the instrument, if any, creating such interest under sub-section (2) of section 30;

(y) the manner of filing the application for registration and for making application for extension of time as referred to in sub-section (3) of section 30;

(z) the manner of making application to the Controller for rectification of register under sub-section (1) of section 31;

(za) the manner in which the notice of rectification shall be served on the Controller under sub-section (4) of section 31;

(zb) the rules regulating the proceedings before the Controller under section 32;

(zc) the time which shall be granted to the applicants for being heard by the Controller under section 33;

(zd) the fee to be accompanied with an appeal under sub-section (1) of section 36;

(ze) any other matter which is required to be, or may be, prescribed.

(3) The power to make rules under this section shall be subject to the conditions of the rules being made after previous publication.

(4) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive session aforesaid, both House agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that Act.

CHAPTER XI REPEAL AND SAVING

Repeal and Savings

48. -(1) The Designs Act, 1911 is hereby repealed.

[2 of 1911]

(2) Without prejudice to the provisions contained in the Gentral Clauses Act, 1897 with respect to repeals, any notification, rule, order, requirement, registration, certificate, notice, decision, determination, direction, approval, authorisation, consent, application, request or thing made, issued, given or done under the Designs Act, 1911, shall, in force at the commencement of this Act, continue to be in force and have effect as if made, issued, given or done under the corresponding provisions of this Act.

[10 of 1897; 2 of 1911]

(3) The provisions of this Act shall apply to any applications for registration of designs pending at the commencement of this Act and to any proceedings consequent thereon and to any registration granted in pursuance thereof.

(4) Notwithstanding anything contained in this Act, any proceeding pending in any court at the commencement of this Act may be continued in that court as if this Act has not been passed.

(5) Notwithstanding anything contained in sub-section (2), the date of expiration of the copyright in the designs registered before the commencement of this Act shall, subject to the provisions of this Act, be the date immediately after the period of five years for which it was registered or the date immediately after the period of five years for which the extension of the period of copyright for a second period from the expiration of the original period has been made.

Subhash Chandra Jain

Secretary to the Govt. of India

Published in the Gazette of India (Extraordinary Part II-Section I) dated May 12, 2000

Designs (Amendment) Rules, 2008 (IN041)
The Designs Rules, 2001 (IN025)
Paris Convention (March 20, 1883)
Agreement Establishing the World Trade Organization (WTO) (April 15, 1994)

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Registered designs

Piracy of registered designs and remedies

This article is written by Tanvi Trivedi pursuing a Diploma in Contract Drafting. This article has been edited by Ojuswi (Associate, Lawsikho).

This article has been published by Sneha Mahawar .

Table of Contents

Introduction

Intellectual Property pertains to the creativity and innovation of the human mind who by using their intellect originates groundbreaking ideas in the fields of artistic and literary works, designs, inventions, names, symbols, etc. used in the business. It has been categorized into two components:-

Industrial Property – This refers to industrial designs, patents, trademarks, and geographical source indications.
Copyright – This includes artistic and literary works such as drawings, paintings, music and film works, novels, photographs, plays, sculptures, etc.

All the intellectual properties such as copyright, patent, trademark, industrial designs, and geographical indication have been given protection under the law. The purpose of protecting these intellectual properties provides a safeguard to the inventor to acquire acknowledgment for his work and procure monetary advantages. In other words, it is likely to secure replicating and encroachment of the inventor’s work. Thus, intellectual property aims at shaping the environment for the advancement and development of the growth of creativity and innovation.

Meaning of industrial designs

An industrial design is a conception or idea that defines the physical appearance of the product by adding stylistic features to it in the form of configuration, ornament, shape, or pattern to a finished article which is done through industrial processes.

The aesthetic feature of an article is an industrial design in a legal sense. The three-dimensional characteristics such as the form of an object, or two-dimensional features, such as designs, lines, or colour, maybe an industrial design.

According to Section 2(d) of the Designs Act, 2000 , “Design” means:

“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, 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 or 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.

Thus, analyzing the definition of design, it consists of the following characteristics:-

It consists only of the features of design or the physical appearance of the product;
The features should include configuration, ornament, shape, or pattern only;
These features applied to an article by industrial processes may include chemical, manual, or mechanical means;
The finished article must have a visual representation and must be capable of being judged by merely looking at it;
There is no constructing mode or anything other than a mechanical appliance;
No trademarks or property marks are included in it.

Piracy of designs

Under the law, if the ‘copyright in a design’ has been infringed, it is known as “Piracy of Design”. In other words, if there is unauthorized use of designs or duplication of such designs, which is then, being used for commercial purpose, during the existence of such copyright, without having consent or license from the registered proprietor of the design, it shall be considered as an unlawful act (design piracy) also he is responsible for the damages.

Taking into consideration Section 22 of the Designs Act, 2000 , it delivers instances which account for piracy of designs”-

If an article whose design is registered is used for sale employing fraudulent or obvious imitation of that design.
If an article whose design is registered is imported for sale without having the consent of the proprietor of the registered design.
If an article whose design is registered or such design has fraudulent or obvious imitation in it, has been published or exposed for sale.

Therefore, if any article or class of articles whose design has already been registered is used for sale by obvious or fraudulent imitation or being imported for sale without the consent of the proprietor of the registered design or such registered design is been published or exposed for sale having prior knowledge that it has obvious or fraudulent imitation will be termed as piracy or infringement of the registered design.

Fraudulent or obvious imitation

As discussed above, to constitute piracy of registered design, deceitful or apparent imitation has to be present for infringement of copyright in the design.

In a fraudulent imitation, the intention is to deceive the person and violate his rights knowingly by imitating his registered design. On the other hand, an obvious imitation means imitating a registered design by slightly adding modifications to it. Thus, this is to say that such imitation must constitute the exact duplication of the registered design to constitute piracy.

Remedies against piracy of designs

The inventor whose rights have been infringed due to the piracy of registered design is entitled to judicial remedies. According to Section 22(2) of the Industrial Designs Act, 2000 , there can be 2 alternate remedies provided to the registered proprietor in the case of design piracy:

to pay to the registered proprietor of the design a sum not exceeding twenty-five thousand rupees recoverable as a contract debt, or
if the proprietor elects to bring a suit for the recovery of damages for any such contravention, and an injunction against the repetition thereof, to pay such damages as may be awarded and to be restrained by injunction accordingly:

Provided that the total sum recoverable in respect of any one design under clause (a) shall not exceed fifty thousand rupees:

Provided further that no suit or any other proceeding for relief under this subsection shall be instituted in any court below the court of District Judge.

Grounds of defence

To get relief under sub-section (2) of Section 22 of Designs Act, 2000 every ground will act as a defence when registration of a design may be cancelled under Section 19. Following are the grounds of defence:-

The design was registered before, in India; or
Such design was published at the time of registration in India or another nation; or
Such design is not a unique piece of work; or
Such design cannot be registered under the Act; or
Such design cannot be constituted as a design under Section 2(d).

International protection of industrial designs

Trips agreement.

TRIPS Agreement compels its parties for safeguarding innovative or unique industrial designs independently produced. The member says that patterns are neither new nor unique unless they differ materially from existing combinations of known design characteristics and this protection must not extend to designs that are technical or practical. TRIPS further requires members to provide the proprietor of a protected industrial design the right to restrict third parties from consenting to production, sale, or import of products bearing a design or containing a copy of it, or a duplicate of the design protected essentially, for those acts being made for business purposes. The minimum protection period granted to the owner should be 10 years under the TRIPS Agreement.

Internationally, apart from the TRIPS Agreement that compels WTO members to implement or update their legislative provisions so that the industrial designs are given minimal levels of protection, there are three more international treaties that offer the contracting states-general levels of protection. The Paris Industrial Property Protection Convention is the first significant international agreement to be agreed upon by the Member States providing general criteria of protection for industrial designs. The second important international agreement was the Hague Agreement on International Industrial Design Registration, which controls the worldwide system of protection managed by the WIPO for design registration. The Locarno agreement of 1979 defines the worldwide industrial design classification. Even if India is not a signatory to Hague Convention, but follows Locarno agreement-based International Classification for Industrial Designs, the Hague system of International Registration should be discussed to analyze industrial design protection according to the International IPR administration.

Hague system

The Hague system enables industrial design owners to protect the design in several countries by simply applying an application to the International Bureau of WIPO, which protects all the members of the WIPO design agreement. Currently, 58 countries are signatories to the Hague Convention, of which 41 are subject to the Geneva Act of 1999 to register international industrial design. In 2008, the European Union joined the Hague International Design Protection System which obliged all EU member states to preserve the designs at Hague. Additionally, a further Union of Countries that have joined the Hague system is The African Intellectual Property Organization (O.P.A.I) with sixteen states.

It streamlines the handling of an industrial design registration since later amendments were made and renovated by one procedure step by the International Bureau. The purpose of the Hague system is to provide users in the Member States with simpler and more economical design protection options. A further advantage of the Hague Agreement is that no domestic patent agent is necessary for getting protection in this jurisdiction. Moreover, all countries are obliged to accept applications whose procedures conform with The Hague Accord Practices but not necessarily with practice in their country.

Previous acts of Hague, the London Act, 1934, and Hague Act, 1960 gave relief to the design owners only after some procedural matters have been handled at the national level but in line with the 1999 Geneva Act, the international design registration protects entirely the applicant’s interest and suspends him from filing a separate national application. It provides the opportunity for industrial design protection in several states and inter-governmental organizations by filing a single international application. Therefore, the protection of an industrial design may be applied on an international level by way of the Hague Agreement, and no national application or prior registration is required.

Protection of industrial designs under the Indian Designs Act, 2000

In the British colonial period, the legislation of 1911 was revised many times, and after the Indian Independence Act was adopted in 2000, the law for the preservation of designs was consolidated, updated, and implemented; In India on 11 May 2001, it came into effect. Replacement of the previous 1911 legislation to give better protection and to promote design activity for the designs registered. The new Act of 2000 provides to the registered design owner an exclusive right to sell, license, assign and use a similar design in any products in India, the industrial design can be registered if new or original, if the design is a functional feature of shape, configuration, pattern or composition of lines and colours, which are applied by an industrial process or means either guide, mechanical or chemical, separate or combined, in two or three dimensions to any article or in both forms.

This Act requires India to implement a ‘first to file, first to receive’ approach which means, to avoid other individuals claiming rights on certain specific designs, that the design inventor or creator should submit the registration application as soon as feasible. A design is considered new if the same design is not publicly accessible to the public before the date of filing or if uniqueness is established globally in the application for registration in India.

The primary change brought about by the legislation was the removal of the concept of ‘design’ of artistic works, as defined in the Indian Copyright Act, 1957. The copyright law also excludes from the purview of the copyright law a new definition of ‘design which has significant differences in terms of the protection of works of art, any design recorded following the designs law.

The High Court of Delhi clarified this in Microfibers Inc. v. Girdhar Co. & Another , the works of art are excluded from the protection of designs as it is an artwork in itself in form of painting and also remarked that artistic work to make industrial use of the works is not omitted from section 2(d) of the Designs Act, 2000 and they needs to be registered to get protection. In this instance, the court indicated explicitly that exclusion of artistic work defined in Section 2(c) of the Copyright Act, 1957 from the definition of ‘design’ under Section 2(d) of the Designs Act, 2000 is made simply to exclude the essence of works of art like the painting of M.F. Hussain. Thus, the paintings, artists, and artworks seek explicitly to be exempt from the new act.

The Supreme Court of India decided on the registration and protection of designs as another significant issue in Bharat Glass Tube Ltd v. Gopal Glass Works Ltd. Gopal Glass Works (the respondents) have registered their designs and had the same certificate, and these designs began to be used in cooperation with a German company when the plaintiff had knowledge that their design was used, they moved to the Court. The design was made to be used in collaboration with a German company. The appellants said that the designs by the defendants were not innovative since they had been used by the German business since 1992 and already published in the United Kingdom Patent Office, so it has lost originality. When the issue was sent to the High Court on appeal; it supported the decision of the Calcutta High Court.

The new law changed the present act further by expanding the initial period of coverage from 5 years to 10 years, however in the event of design piracy; the individual breaching the design copyright shall be responsible for not more than 50,000 rupees for a maximum length of protection of fifteen years [Section 11] . The owner may also file a claim for damages and violation. The case for violation of registered designs cannot be brought before any court less than the District judge [Section 22] . To preserve and encourage industrial design in India the new Act is superior and more effective.

Dabur India Limited v Rajesh Kumar & Others [2008 (37) PTC 227 (Del.)]

Facts of the case.

The plaintiff marketed ‘Dabur Amla Hair Oil’ into bottles with a distinctive design, with a semicircular shoulder with a curved back and front panel that converged the shape and configuration of the bottle of the plaintiff was unique, new, and original and was registered in design No-17324 under the Designs Act. The green cap was likewise distinctive and it was also registered following the Designs Act. It is also argued that the bottles are printed on the bottom of the plaintiff’s trademark ‘Dabur’. The plaintiff alleges that they produce plastic bottles, imitate the plaintiff’s bottles, and also imprint the ‘Dabur’ mark on the bottom, and these bottles are sold by the defendant to ‘Dabur Amla Hair Oil’ counterfeiters. Therefore, both the defendant’s designs and the bottle cap are infringing.”

The case was fully heard and bottles of the complainant along with the defendant were put before the court for comparing and following the long arguments of the opposing parties.

After examining the bottles, the Court initially noted that in the complaint, the plaintiff had made inaccurate averments that the defendants sold the bottles with the plaintiff’s trademark. The court found no bottle seized by the defendant to carry the trademark ‘Dabur’ on the base or anywhere else and in its report the Local Commissioner has also stated that seized bottles have not been embossed ‘Dabur’ by the accused so it is clear that the plaintiff did this to establish an infringement of the trademark.

A quick check on the plaintiff’s bottles might indicate that the bottles used by the complainant are typical bottles utilized by numerous other firms for the further commercialization of their hair oil, fixers, and liquid product. Plaintiff seemed to have no particular characteristic of the registered bottle as the design of the plaintiff had the complete bottle as the design and the plastic bottles used by the claimant are extremely common and do not have a particularly eye-catching design or form.

The Court further found that the plaintiff did not mention any particular originality in the design of the bottle, nor did the plaintiff mention any originality in the registration certificate, because similar designs are used by several leading firms long before the plaintiff registers this design.

Disney Enterprises Inc. v. Prime Housewares Ltd. (2014)

In the case of Disney Enterprises Inc. v. Prime House Wares Ltd. India and international registration of industrial designs came into dispute for the time being in the High Court of Delhi. In this case, Mumbai-based Prime Housewares Ltd. was manufacturing the characters of Disney such as Mickey-Mouse, Minnie-mouse, and Donald-duck. Disney filed a complaint in the case of trademark infringement with the primary argument that the trademark of the applicant is protected under Indian law, but not the designs. The Court handed down the order in favour of Disney over the trademark infringement action. The court also instructed the Indian company to supply Disney with every violating material, so it can be destroyed.

Britannia Industries Ltd. v. Sara Lee Bakery [AIR 2000 Mad 497]

The plaintiff is a firm dedicated to manufacturing and commercialization of several foodstuffs, such as bread, biscuits, cupcakes, cakes, etc. and one of the Plaintiff’s goods is a biscuit called “Milk Bikis Milk Cream” . The biscuit of the plaintiff has a round shape on one side and a humorous face on the other. Between both cookies, there’s a cream filling, a round nose, and a smile with two teeth that are apparent and that both teeth are filled with cream. The uniqueness is the form and shape of the face of the cookie on the one hand and the flat cream on the other hand between the biscuits. The applicant is the registered owner and also possesses the ‘Britannia Milk Bikis Milk Cream’ copyright. The complainant filed the case to note that the defendant had launched the offending product as ‘Milk Wala’ which in all respects is comparable to the complainant’s product. Thus, the defendant’s action is a pirate against the design of the registered design, a breach of copyright, and transmission as of the plaintiff, as it is identical in its design.

When considering the designs in the consumer’s eye and children, the Court found that it was evident that the primary characteristics of the two cookies were not very same, and there was thus no violation. The Court evaluated likewise the wrappings of competitor items and ruled that considerable differences exist and that no violation of copyright was found. In respect of passing-off, the Court held that the plaintiff had ‘Britannia’ on the biscuit wrapper, whereas the trademark by the defendant was ‘Nutrine’ and ‘Milkwala’ on the wrappers of its biscuits. The design and packaging characteristics of both the items are very different, and young customers can immediately see the differences.

M/s Videocon Industries Ltd v M/s Whirlpool of India Ltd. [MH/0639/2014]

The complainant registered the design for its washing machines form and arrangement. Plaintiff’s designs are square on one side and rounded on the other, with a particular visual attraction. The plaintiff has shown their design to be so successful that they have achieved significant sales of the washing machine with the impugned design within a brief time. Later, the plaintiff saw that the defendant had begun to produce and commercialize washing machines of the same design, form, and configuration as the plaintiff. The washing equipment of the defendant had similarities to the design of the plaintiff. It was clear that the defendant had violated the design registered and did intentionally show the popularity of the distinguished design of the washing machine of the plaintiff. Within these circumstances, the plaintiff brought an action for a design violation and dismissal.

It was decided by the court that the washing machine offered by the defendant, too, is recorded by the plaintiff with a characteristic boat design. The uniqueness of the design is the shape that appeals visually and has generated value in items that are not related to enhanced features but desired. The defendant has made no difference to his goods simply by putting some features, altering the location of the knobs, or adding colour. The testing of an eye-only judgment shows clearly that both machines are comparable and a case of violation is established.

To sustain the proceedings for dismissal, the Court also found that the person need not be actively involved and, since the opposing machines are comparable, the case of dismissal is resolved.

The registration of the Industrial Design shall protect the decorative or aesthetic aspects of the product, and shall provide the holder or owner of the registered design with exclusive rights against illegal use like the replication or copying without the consent of such person. The preservation of industrial designs contributes to economic growth which encourages industrial inventiveness. With the preceding explanation, it is evident that The Hague design registration system offers international vendors maximal benefits to gain registration and be protected by a single application within the Contracting States. It facilitates the registration and protection of designs made by an individual internationally straightforward and efficient. Although India isn’t a part of the Hague International Design Registration System, it provides more protection under the Designs Act of 2000 for industrial designs however, it gives protection to all contractual parties in the Hague system and offers great security to foreign traders in India and preferring International protection will be better within India.

https://www.legalbites.in/law-relating-to-piracy-of-designs-in-india/
https://www.wipo.int/designs/en/
https://www.indiacode.nic.in/bitstream/123456789/1917/1/200016.pdf
https://www.legalbites.in/piracy-of-registered-designs/
https://www.wipo.int/treaties/en/registration/hague/summary_hague.html
https://www.wipo.int/export/sites/www/hague/en/guide/pdf/hague_guide.pdf
https://www.mondaq.com/india/copyright/80924/designs-and-artistic-works-microfibres-appeal-falls-through
https://spicyip.com/2008/08/supreme-court-delivers-judgment-in-case.html
https://www . mondaq.com/india/trademark/65772/dabur-design-decided-upon-no-infringement
https://www.legalserviceindia.com/legal/article-475-origin-and-development-of-designs-act-2000.html
http://rnaip.com/wp-content/uploads/2014/09/0601112701news.pdf
http://rnaip.com/wp-content/uploads/2014/09/0601112703news.pdf

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All you need to know about Design Act, 2000
The proprietor has to choose one of the following remedies: 1. Section 22 (2) (a) states that if any person contravenes the provisions of Section 22 of the Designs Act, 2022 i.e., if a person does any act which amounts to piracy of registered design, he shall be liable to pay INR 25,000 rupees for every contravention.
A critical analysis of design protection laws in India
In India, the need for protection of design was felt in the 18th century and so the Patterns and Design Protection Act was introduced in 1872. This Act gave the exclusive right of making, selling of the designs to the inventors for a short duration of time. The act was followed by an Inventions and Design Act, 1988 which was replaced by the ...
Recap 2021
The Plaintiff alleged that the Defendant imitated Plaintiff's products/design/trade dress/get up. The Court analyzed the case at hand from the purview of Sections 2, 4, 5, 19, 22 of the Designs Act, 2000 and various cases. It noted that mere registration of the design would not entitle a registrant of the design to claim protection.
A Comparative Analysis of the Designs Act 1911 and the Designs Act 2000
Analysis of the Difference between the Act of 1911 and the Act of 2000 based on Case study Cases relating to Designs Act, 1911: A) Ampro food products v. Ashok Biscuit Works (AIR 1973 AP 17) ... The design is registered under the Design act, 1911. The respondent's biscuits also have embossed on them an identical design except that the letters ...
Critical Analysis of Design Law in India with reference to Design Act 2000
India joined the WTO as a member State in 1995. Consequently, the Patents & Designs Act, 1911 was repealed and the Designs Act, 2000 was enacted, to make the Designs Law in India in compliance with TRIPS. Moreover since the enactment of the Designs Act of 1911, there has been a considerable progress in the field of science, technology and other ...
PDF Critical Analysis of Design Laws in India with Provisions of Design Act
demonstration of 2000 stipends the proprietor or proprietor of the enlisted plans an exclusionary right of offering, authorizing, relegating and utilizing the same in any item. Also Design act of India 2000 has been amended several times. In the year 2007on 8th February: National Design Policy adopted. Among other things aims
Designs Act, 2000
Introduction The objective of the design Act, 2000 is to protect new or original designs so created to be applied ... Read more Designs Act, 2000 - summary and notes ... Remedies In Case of Registered Design Against Infringement. ... A study on homicide with special reference to manslaughter;
All you need to know about the Salient features of the Design Act, 2000
Earlier this Act was governed by the Design Act, 1911. In order to bring the Design Act at par with the International law the enactment of the Design Act, 2000 took place. So, presently the design laws are regulated by the Design Act of 2000. It is an Act to consolidate and amend the law relating to the protection of designs.
PDF Chapter 1
BE it enacted by Parliament in the Fifty first Year of the Republic of India as follows :-. CHAPTER 1. PRELIMINARY. 1. (1) This Act may be called the Design Act, 2000. (2) It extends to the whole of India. (3) It shall come into force on such date as the Central Government may, by notification, appoint and different dates may be appointed for ...
Salient Features of Design Act 2000
The Design Act, 2000 replaced the previous legislation, the Design Act of 1911, in order to align Indian design laws with international standards. This enactment aimed to consolidate and amend the law concerning the protection of designs and it came into force on 12th May 2000. Published in the Gazette of India, the Design Act of 2000 is a comprehensive and statutory code that applies ...
Overview of The Design Act, 2000
The Design Bill, 1999 came, with provision of International IRP laws. Presently, design laws are maintained by the Design Act, 2000. 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 ...
[The Viewpoint] What makes for 'new or original': Design protection in
14 Oct 2022, 4:45 am. 5 min read. Novelty or originality in design are central requirements for seeking protection under the law in India. Under the Designs Act, 2000 ("the Act"), for a design to be capable of being registered, it must be new or original. In common usage, the words 'novelty' and 'originality' are often used ...
The Designs Act, 2000: A Fashion Faux Pas
This research paper relies on the doctrinal methodology of research. Reliance has primarily been placed on case laws, journals and established commentaries dealing with the subject. Plausible solutions to the inadequacy of the Designs Act, 2000 to foster creation and novelty in the fashion design apparel industry have been suggested herein.
Case Study: Registration of a Design
In order for the design to be registered and protected under the Design Act, 2000, it needs to fulfill the following essential elements:. 1. Novelty aspect: Novelty means newness. If a product's design has a novelty aspect, then only it can be registered. A combination of registered designs can also be considered, but only if that combination ...
Design Litigation and Design Infringement in India
Design Infringement Litigation in India. The Design Act, 2000 provides rights and remedies to the Registered Proprietor of a Design. Chapter V of the Design Act, 2000 pertains to "Legal Proceedings", Section 22 of the Act in particular provides for remedies in case of 'Piracy of a Registered Design'.
The Designs Act, 2000
V. Vartika Lawania. The Designs Act, 2000 governs design protection law in India, replacing the earlier Designs Act of 1911. The 2000 Act aims to encourage design activity, protect registered designs, and reward innovators for developing new and original designs. Key aspects of the 2000 Act include definitions of "design" and prohibited designs ...
The Relevant Provisions And Case Laws Dealing With Protection Of Shape
The enactment of new act was also necessary in order to bring the India Design Law at par with the International Law. The Design Act 1911 has been repealed and replaced by Design Act 2000. Presently the Law pertaining to Design in India is governed by Design Act 2000. Why Owner Of A Design Should Be Vigilant About Protecting The Design:
Standardization of the Management of The Designs Act, 2000
Design Act, 2000 is the law ensuring the originality of the design of an article and a registered design may help to act against piracy. It's clear that the act's purpose is to protect designs. In addition, the act amplifies the complexity of designs such as design lapse, restoration of lapsed designs, period until a design remains in effect.
The Designs Act 2000
Short title, extent and commencement. (1) This Act may be called the Design Act, 2000. (2) It extends to the whole of India. (3) It shall come into force on such date as the Central Government may, by notification, in the Official Gazette, appoint; and different dates may be appointed for different provisions of this Act and any reference in ...
All you need to know about the tussle between Crocs and Bata
Currently, design laws are maintained by the Design Act, 2000. The new Act has come into existence on 25.05.2020. This Act complies with the article 25 and 26 of TRIPS agreement which stresses on designs protection. ... Case study Crocs vs Bata for Design Infringement. This was the case filed by the U.S Company Crocs Incorporation against Bata ...
PDF The Artist-Developer: A Case Study of Impact through Art-Centered
A Case Study of Impact through Art-Centered Community Development in Neighborhoods of Color ... the Census of 2000 to 2010 the population of White residents went from 9 percent to 11 percent but ... Round 47 was titled "The Act of Doing: Preserving, Revitalizing, and Protecting Third
The Designs Act, 2000 (Act No. 16 of 2000), India, WIPO Lex
Report of the Controller to be Placed before Parliament 45. An Act to consolidate and amend the law relating to protection of designs. BE it enacted by Parliament in the Fifty-first Year of the Republic of India as follows:-. (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette ...
Cisco Security Products and Solutions
Read the full case study. The NFL relies on Cisco "From securing stadiums, broadcasts, and fans to protecting the largest live sporting event in America, the right tools and the right team are key in making sure things run smoothly, avoiding disruptions to the game, and safeguarding the data and devices that make mission-critical gameday ...
Breaking's Olympic Debut
The Daily is made by Rachel Quester, Lynsea Garrison, Clare Toeniskoetter, Paige Cowett, Michael Simon Johnson, Brad Fisher, Chris Wood, Jessica Cheung, Stella Tan ...
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Harris Chooses Walz
A guide to the career, politics and sudden stardom of Gov. Tim Walz of Minnesota, now Vice President Kamala Harris's running mate.
Piracy of registered designs and remedies
Remedies against piracy of designs. The inventor whose rights have been infringed due to the piracy of registered design is entitled to judicial remedies. According to Section 22 (2) of the Industrial Designs Act, 2000, there can be 2 alternate remedies provided to the registered proprietor in the case of design piracy: to pay to the registered ...
PDF THE DESIGNS ACT, 2000 ARRANGEMENT OF SECTIONS
h those purposes, as the case may require.9. Certificate of registration.—(1) The Controller shall grant a certificate of registration to. the proprietor of the design when registered.(2) The Controller may, in case of loss of the original certificate, or in any other case in which he deems it expedient, urn.

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[The Viewpoint] What makes for ‘new or original’: Design protection in India

Meaning of “New or Original”

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What constitutes prior publication

Design must be “significantly” distinguishable from known designs

Test for New or Original

The Designs Act, 2000: A Fashion Faux Pas

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