Novelty and Originality of design- elements

Overview:

The main aim of the Design Act is to protect and safeguard the designs which are registrable under the Design Act. Certain elements are required to be present in the product to seek registration of the design. Not every design can be registered and protected under the law. There are certain elements required to be present in the product design to be eligible for registration. 

What are Novelty and Originality?

The term novelty and originality here mean the application of texts, patterns, lines, images, or a combination of either or all into creating a design that can be distinguished from other designs. Elements taken from natural objects or any other material source can be new and original. 

To know more about elements of design, you can check our blog

Section 4 of the Design Act, 2000 requires the design to be novel and original (not published anywhereglobally,r used in the country, or applied elsewhere outside India before prior user claimed). It has to be ensured that the design proposed for registration does not form a part of the public domain or state of the art.

What is Publication of design?

Section 16 of the Act deals with the publication of the design. The term publication is as such not defined in the Act, yet the section states- The Term Publication means

  • It should not have been disclosed in public before the filing date of the ordinary application. In the case of the reciprocity application, it should not have been disclosed before the priority date filing. 
  • It should be distinguishable from the already existing design or combination of designs known in public. 

Exceptions: Section 21 of the Design Act, 2000

  • The disclosure of design if made in good faith by the lawful proprietor to any third person shall not constitute publication.”
  • When the proprietor accepts the first confidential order for the articles, which shall have the new design inputs before registration, it will not constitute publication of design. 
  • If the designs have been showcased in any exhibition, which shall fall under the purview of Section 21 Of The Designs Act,2000. 
  • If the design description is published during or after the exhibition but not before the exhibition. 
  • If any third person published or describes the design during or after the exhibition without the lawful proprietor’s consent.