FAQs on Design Law & Procedures

What is design?

In India, design is governed under THE DESIGNS ACT, 2000 (Act No. 16 of 2000). The Act itself provides definition of design, according to Section 2(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).” This means that, design protection is given on features of shape, configuration, pattern, ornament or composition of lines or colours which have to be applied on article and which in the finished article appeal to and are judged solely by the eye. Section 2(a) of the Act, defines “article” as “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”.

What designs are prohibited for registration in India?

According to Section 4 of the Act, followings designs are not registered:

• not new or original; or

• 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

• not significantly distinguishable from known designs or combination of known designs; or

• comprises or contains scandalous or obscene matter.

Section 2(g) of the Act defines “original”, according to which it means design originating from the author of such design and includes the cases which though old in themselves yet are new in their application. That means, new applications of already disclosed design can be termed as “original”. So, one has to get design protection across all classes and articles within those classes to get wider protection. However, this may lead to more expenses because only one application can be filed for each class at a time. A separate application is required to be filed if design protection is sought for more than one class (Rule 11 of The Designs Rules, 2001).

What is the tenure of protection for design?

When a design is registered, the registered proprietor of the design shall, subject to the provisions of the Act, have copyright in the design during ten years from the date of registration, which can be extended for further five years from the date of expiration of the original period of ten years (Section 11 of the Act).

What are the post registration formalities?

Before delivery on sale of any articles to which a registered design has been applied, the proprietor have to 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 (Section 15 of the Act).

What are the grounds for cancellation of registration of design?

According to Section 19 of the Act, if the design is previously registered in India; or published in India or in any other country prior to the date of registration; or not a new or original design; or not registrable under this Act; or not a design as defined under clause (d) of section 2, then the registration of design will be cancelled.

What are the requirements for filing of designs?

To file a design application in India, the applicant has to file either online mode or offline. There are different charges/fees for online and offline filling of design application and other documents in connection thereto.

To file a design application in India, log on to the official website of O/o CGPDTM, i.e. ipindia.gov.in, and register yourself in the website.

Who can register?

Registered Patent Agent, or Advocate or Applicant

What are the requirement for registration?

• Patent Agent: Patent Agent code

• Natural Person: Name, address, contact details

• Organisation/Company/Startup/Educational Institutions: Organisation name, address, contact details, official website (optional).

You must have either an electronic signature or digital signature certificate to complete registration for online filing.

What are the forms required to be filed?

Form 1, Form 21 (in case filed through attorney/agent).

Representation sheets: 4 copies.

Suggested readings:

The Designs Act, 2000 https://ipindia.gov.in/Designs/designs_act_2000

The Designs Rules, 2001 https://ipindia.gov.in/Design_rules/