What are the benefits of Design Registration?
Registered Proprietor has the exclusive right to apply a registered design to the article in the class in which Design is registered. Rights obtained by Design Registration can be licensed and/or assigned. In case of infringement, damages can be claimed by the registered Proprietor.
Who may apply for Design Registration?
Any person claiming to be the proprietor of any new or original design may apply for registration. A proprietor may be from India or from a Convention Country.
A proprietor may be:
an author of design,
a person who has acquired the design,
a person for whom the design has been developed by the author, or
a person on whom the design has devolved.
The application for registration of design can be filed by the applicant himself or through a professional person (i.e. patent agent, legal practitioner). However, for the applicants not residing in India, address of an agent residing in India can be used as address for service.
Is it necessary to have prototype article before applying for Design Registration?
No, it’s not mandatory to have prototype. However, Design must be capable of being applied to article by an Industrial Process.
What is the correct time to apply for Design Registration?
Application for Design Registration must be filed before making the design available to the Public as not novel Design cannot be given registration. It is also to be noted that Design Registration is granted to whoever files the application first.
What are the criteria for Design Registration?
A design should:
Be new or original registration
Not been disclosed to the public anywhere by publication in tangible from or by use or in any other way prior to the filling date, or where applicable, the priority date of the application for registration.
Be significantly distinguishable from known designs or combination of known designs.
Not comprise or contain scandalous or obscene matter.
Not be a mere mechanical contrivance.
Be applied to an article and should appeal to the eye.
Not be contrary to public order or morality.
Not be prejudicial to the security of India
What is the term of Protection if Design is registered?
The copyright in a registered design may be extended by a period of five years, from the expiration of original period of ten years. An application for extension of copyright shall be filed before the expiry of the original period of ten years. A registration of design ceases to be effective on non-payment of extension fee. However, lapsed designs may be restored provided application for restoration in Form-4 with prescribed fees is filed within one year from the date of lapse stating the ground for such non-payment of extension fee with sufficient reasons. If the application for restoration is allowed the proprietor is required to pay the prescribed extension fee and requisite additional fee and finally the lapsed registration is restored.
Is it possible to renew the term of the Design Registration?
No, there is no provision for renewing the term of the Design registration once a period of 15 years is over.
Is Cancellation of registered Design Possible?
The registration of a design may be cancelled at any time after the registration of design.
Petition for cancellation has to be made in form 8
Following grounds can be used for the same:
That the design has been previously registered in India or
That it has been published in India or elsewhere prior to date of registration or
The design is not new or original or
Design is not registrable or
It is not a design under Clause (d) of Section 2.
Can the Refusal of Design Registration be appealed?
Yes, the jurisdiction lies with High Court.
Are the abandoned applications published? Can same applicant apply for registration of same Design again?
Abandoned applications are not published by the Design Office. Another application can be made for the same design if Applicant has himself not made the Design available to the public.
What are the remedies available in case of piracy of Registered Design?
In case of piracy of registered Design, a suit for injunction and/or recovery of damages may be instituted against the accused in any court not below the court of District Judge.
Section 22 of the Design Act 2000 provides the legal proceedings to be followed in case of Piracy of Registered Design.
One of the below remedies can be sought against the accused:
Paying to the registered proprietor of the design a sum not exceeding twenty-five thousand rupees recoverable as a contract debt provided that the total sum recoverable in respect of any one design shall not exceed fifty thousand rupees; and
Recovery of damages for any such contravention, and an injunction against the repetition thereof, to pay such damages as may be awarded and to be restrained by injunction accordingly
Ip Juris Legem
Delhi NCR : Intellectual Property Law Firm
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