A Look into the Need for Industrial Design Protection
Industrial design refers to shape, configuration, pattern or ornamentation applied or applicable to an article. While the protection is sought to the aesthetic look of a particular product, it does not extend to any technical feature or functionality. Industrial Design protection is a type of intellectual property right that gives the exclusive right to make, sell, and use articles that embody the protected design, to the right holder. In order to get the statutory protection of Industrial Design, the Design has to be registered before the Design registry.
The following are the important criteria any article should meet, to qualify for Design protection as per the Design Act 2000, in India:
- Design must be new or original, not previously published or used in any country before the date of application for registration
- Design must relate to shape, configuration, pattern or ornamentation of the article
- Design must be applied to an article by any industrial process
- Design must not be linked to any functional aspect of the article
Why should one look into registration of Industrial Design?
In the present era of creativity, aesthetics and overall design, and visual appeal of any product is very significant. Visual appearance of product makes it appealing, attractive, and distinct from others. By protecting the Industrial Design, the proprietor will be able to restrain others from copying and illegally adopting same or similar looking products in the market. Protection of industrial designs also encourages creativity in the manufacturing and industrial sectors, which in turn leads to an expansion in commercial activities.
What cannot be protected as per the Design law in India?
- Any industrial design being opposing to public moral values
- Any industrial design describing any process of construction of an article
- Industrial Designs of – books, jackets, calendars, certificates, forms and other documents, dressmaking patterns, greeting cards, leaflets, maps and plan cards, postcards, stamps, medals
- Industrial Designs including flags, emblems or signs of any country
- Industrial Designs of integrated circuits
Industrial Design registration process in India:
All design applications may be filed before the Design registry, Kolkata or before any of the Patent offices, subject to the geographical jurisdiction. After the application has been filed, the concerned office determines if the design is barred for registration. Accordingly, it may issue a statement of objections as an examination report, and the applicant must respond to the objections within a period of three months from the date of receipt of the examination report. If the applicant fails to respond to the objections within the stipulated time period, the application will be abandoned. Thereafter, based on the response to the objections that have been filed by the Applicant, the Controller of Designs determines if the application should be refused, accepted or put up for a hearing. The application will be processed for registration once it is accepted by the Controller of Designs. The particulars of the application, along with the representation of the article, will be published in the Official Gazette after the registration. An Industrial Design registration is valid for a period of 10 years from the date of registration, which can be further renewed for a period of 5 years. All appeals against the decision of the Controller of Design have to be filed before the High Court.
Author: Sarthak Saran
Contributed by Industrial Design (Design Patent) division of BananaIP in India
For information on Industrial design law in India, write to [email protected]