Design Registration is possible only for the outer features of an article such as shape, configuration, pattern, ornament or composition of lines or colours that are judged solely by the eye. It is to be understood that these features should be applied to the article in two dimensional or three dimensional or in both forms using any industrial process.
Application for Design is done by a proprietor wherein the proprietor may be from India or from a Convention Country. However, the proprietor essentially needs to be an author of the design or a person, who has acquired the design, or a person for whom the design has been developed by the author, or a person on whom the design has devolved.
Every article that needs to be protected under design belongs to a particular class which needs to be mentioned in the design application form. However, a separate application is required to be filed for each class for registering of a design in more than one class. Under the Designs Rules, 2001, articles have been classified in 32 different classes and respective subclasses based on Locarno Classification.
Ordinarily the time required for registration in India is around one year. However, this time is substantially dependent on the various phases through which the application proceeds such as for example, formality check pass, examination, objections, hearing and registration.
Patent provides exclusive rights for a product/process passing three criteria of patentability, namely Novelty, Inventive step and Industrial applicability. In comparison, the Design provides protection to ornamental or aesthetic look of an article solely appealing to an eye of the observer.
The main criteria for deciding grant of design are Novelty and Originality. The design shall be considered to be new when it has not 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. Originality means originating from the author of design for a first time or old in themselves yet they are new in their applications.
The term of design protection in India is 10 years. However, this term may be extended by 5 more years. Effectively, the term of design protection in India is 15 years.
The proprietor of the design gets exclusive right called “copyright of designs” to apply the design to the article in a class in which the design is registered. The registered proprietor can institute a suit for injunction as well as recovery of damages against any person engaged in piracy of the registered design. The suit for injunction / damages can also be instituted in any Court not inferior than District court.
There is a provision of cancellation in Designs Act. Any interested person can file a petition for cancellation of registered design based on various grounds mentioned in the designs Act.