Designs - Frequently Asked Questions
Date: January 2012
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Q.    What is meant by Design?

A.    Design has been defined under the act to mean 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)

Q.    What is copyright in Design?

A.    Copyright means the exclusive right to apply a design to any article in any class  in which the design is registered. When a design is registered, the registered proprietor of the design shall have copyright in the design during ten years from the date of registration.

Q.    What is meant by Original?

A.     In relation to a design, Original means originating from the author of such design and includes the cases which though old in themselves yet are new in their application.

Q.     Who is the Proprietor of the Design?

A.    (a) 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 is the proprietor,

(b) 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 is called the proprietor,

(c) In any other case, proprietor 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.

Q.     What designs cannot be registered?

A.     The following design cannot be registered: 

(a) A design which is not new or original; or

(b) A design which has been disclosed to the public either 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 the priority date of the application for registration; or

(c) A design that cannot be significantly distinguished from other known designs or combination of known designs; or

(d) A design comprising or containing any scandalous or obscene matter.

Q.     What is meant by Piracy of a registered design?

A.    Whenever any person:

(a) for the purpose of sale applies or causes 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 does anything with a view to enable the design to be so applied commits piracy of the registered design;

(b) imports 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 applies to it the design or any fraudulent or obvious imitation thereof commits an act of piracy;

(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) publishes or exposes or causes to be published or exposed for sale that article commits an act of piracy.

Q.     Does the Designs Act offer any reciprocal arrangement to claim priority in respect of designs registered in other countries?

A. There is a Reciprocal arrangement with the United Kingdom and other convention countries or group of countries or inter-governmental organizations. A person who has applied for protection for any design in the United Kingdom or any or other convention countries or group of countries or countries which are members of inter-governmental organizations, shall 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 such country. However, the application should be made within 6 months from the date of the application made in the home country. Where more than one applications have been made then the 6 month period is to be reckoned from the date of the earliest application.

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