17 December, 2019
Legal framework
The protection of industrial designs in India is governed by a dynamic legislative framework which is aligned with advances in technology and concomitant international developments. The Designs Act 2000, which repealed and replaced the Designs Act 1911, sets down the statutory framework for the protection of designs and has been in force since 11 May 2001. The act not only provides for minimum standards of protection for industrial designs (as contemplated in the World Trade Organisation Agreement on Trade-Related Aspects of IP Rights (TRIPs)), but also conforms to international trends in design administration. In conjunction with the Designs Rules 2001 (as amended in 2008 and 2014), the act streamlines the procedural aspects of registering and processing design applications. The 2014 amendment to the Designs Rules brings in ‘small entity’ as a new category of applicant in addition to natural persons. India is also party to various international treaties which protect international designs, including the Paris Convention and TRIPs. In 2019 India acceded to the Locarno Agreement, which will help the Indian Design Office to harmonise the classification systems in line with those followed globally.
Unregistered designs
An unregistered design is not enforceable under the law, so a design must therefore be registered in order to enjoy protection. However, it may be possible to protect a design under other legislation.
Registered designs
A ‘design’ has been defined statutorily to mean: “features of shape, configuration, pattern or ornament or composition of lines or colour or combination thereof applied to any article whether 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.” This definition is exhaustive and all statutory requirements must be fulfilled by the feature in order to constitute a design under the act. The key requirement is the feature’s ability to appeal to the eye. This implies that the feature must be visible on the article and have aesthetic or artistic merit or visual appeal.
Although the novelty requirement is absolute, the act provides an exception in the form of a six-month grace period in case of disclosure of the design before filing. The grace period is available only if:
- the design is disclosed, used or published in an exhibition notified by the government;
- the exhibitor exhibiting the design or article gives prior notice to the controller of designs; and
- the application for the design is filed within six months of the first exhibition of the design.
This article was first appeared in Designs: A Global Guide 2020, a supplement to WTR, published by Law Business Research.
For the full article, please click here.
For further information, please contact:
Omesh Puri, LexOrbis
mail@lexorbis.com
