Designs play a crucial role in the world of fashion, industrial design, and architecture. They are an essential aspect of creating a unique and recognizable brand identity. However, the process of creating a design is often time-consuming and costly. As a result, designers need to protect their designs to ensure that they receive the benefits of their hard work and creativity. Design protection In India is governed by the Designs Act of 2000. This article will explore the elements of design protection in India and the benefits of protecting your designs.
What is Design Protection?
Design protection is a legal concept that grants exclusive rights to the creators of original designs. These exclusive rights include the right to reproduce the design, distribute copies of the design, and use the design in the production of goods. In India, design protection is governed by the Designs Act of 2000.
Benefits of Design Protection in India
Design protection has several benefits for designers in India.
First, design protection allows designers to prevent others from using their designs without permission. This means that designers can control how their designs are used and can also prevent others from profiting from their work without permission.
Second, design protection can also provide financial benefits. In India, design owners have the exclusive right to reproduce and distribute copies of their designs. And to use the designs in the production of goods. This means that they can charge royalties for the use of their designs, which can provide a source of income.
Third, design protection can also help to create a strong brand identity. By protecting a design, a designer can create a recognizable and unique brand that sets them apart from their competitors.
Elements of Design Protection in India
The elements of design protection in India are governed by the Designs Act of 2000. In order to be eligible for design protection in India, a design must meet certain criteria:
1. Definition of Design:
The first point of design protection in India is the definition of design. According to the Indian Designs Act, 2000, a design is defined as the visual appearance of a product or its ornamentation. It includes the shape, configuration, pattern, or ornamentation of a product, or any combination of these elements. This means that a design can be any aspect of the physical appearance of a product, including its shape, color, texture, and patterns.
The definition also includes ornamentation, which refers to any decorative elements added to a product. This could include embellishments, patterns, or other decorative features that enhance the visual appeal of the product.
It is important to note that the definition of design in India only covers the visual appearance of a product. It does not include functional features or features related to the product’s performance. Therefore, designs that are solely functional in nature are not eligible for protection under the Indian Designs Act.
The registration process for a design in India involves the following steps:
- Filing of Application: The first step is to file an application for registration of the design with the Office of the Controller General of Patents, Designs, and Trademarks. The application should include details such as the name and address of the applicant, a representation of the design, and any relevant documents or drawings.
- Examination: Once the application is filed, it will undergo examination by the relevant authorities. It is done to ensure that the design meets the necessary criteria for registration. This includes checking for originality, novelty, and whether the design is solely functional in nature.
- Publication: If the design is found to be eligible for registration, it will be published in the Official Gazette of Patents, Designs, and Trademarks. The publication serves as notice to the public that the design has been registered.
- Grant of Registration: Once the design is published in the Official Gazette, the registration is granted and a certificate of registration is issued to the applicant. The registration certificate includes details such as the registration number, the date of registration, and the duration of protection.
- Payment of Fees: Throughout the registration process, the applicant is required to pay various fees for examination, publication, and grant of registration.
It’s worth noting that the registration process can take several months to complete and the examination process can be time-consuming. So it’s recommended to file the application as soon as possible. Additionally, the registration is valid only in India and it’s not valid in the international level.
3. Duration of Protection:
The third point of design protection in India states that once a design is registered, it is protected for a period of 15 years from the date of registration. This means that during this 15-year period, only the owner of the registered design has the right to use, manufacture, sell or import the product or article incorporating the registered design.
This protection applies to any product or article that incorporates the registered design. Regardless of whether the product or article is identical or substantially similar to the registered design. This means that even if another person or company makes slight changes to the registered design, they still cannot use, manufacture, sell or import the product or article without the permission of the registered design owner.
During this 15-year period, the owner of the registered design can take legal action against anyone who uses, manufactures, sells or imports the product or article incorporating the registered design without their permission. They can seek remedies such as an injunction to stop the infringing activity, damages or an account of profits, and also claim for statutory damages.
It’s worth noting that the protection of registered design is renewable for every five years. After the initial fifteen-year period, but the renewal must be done before the expiration of the initial fifteen years. This means that the total protection period for a registered design can be up to 20 years.
Infringement of a registered design in India is the unauthorized use of a design that is identical or substantially similar to a registered design without the permission of the owner. The Infringement can occur in various forms, such as the manufacture, sale, or importation of products bearing the infringing design.
The owner of the registered design can take legal action against the infringing party by filing a suit in a competent court. The court has the power to grant injunctions, award damages, and order the destruction of infringing products. The owner can also file a complaint with the Customs department to prevent the importation of infringing products.
It is important to note that the mere similarity of a design is not enough to establish infringement. The similarity must be such that an average person can easily confuse the infringing design with the registered design. The court also considers the overall impression of the design, taking into account the overall visual appearance, shape, and pattern.
The owner also has the burden of proving that their design is registered and that the infringing design is identical or substantially similar to the registered design. It is also important to note that the owner must actively monitor and enforce their design rights. As a failure to do so could result in the loss of protection.
5. Copyright Protection:
Copyright protection refers to the legal protection of the original artistic expression of a design. In India, the Copyright Act, 1957 provides protection for original artistic works, including designs. Under this act, the creator of a design has the exclusive right to reproduce, distribute, perform, or display the work publicly, and to make derivative works.
The copyright protection for a design lasts for 60 years after the death of the creator. This means that the owner of the copyright can prevent others from reproducing, distributing, or using their design without permission for 60 years after their death.
It’s important to note that copyright protection and design protection are two different forms of protection. Copyright protection covers the original artistic expression of the design, while design protection covers the visual appearance of a product or its ornamentation. It is possible for a design to be protected under both copyright and design laws.
It’s also worth noting that a design may not be protected under copyright if it’s solely functional in nature. Copyright protection only applies to designs that have an original artistic expression. Therefore, designs that are solely functional in nature, such as the shape of a water bottle, are not protected under copyright laws.
6. International Protection:
As a member of the World Intellectual Property Organization (WIPO) and the Paris Convention for the Protection of Industrial Property. Indian residents can apply for design protection in other countries that are also members of these organizations. This means that Indian residents can seek protection for their designs in other countries, without the need to file separate applications in each country.
The WIPO and Paris Convention provide for a system of international registration of designs, known as the Hague System. Under this system, an applicant can file a single application for the registration of their design in multiple countries, by choosing the countries of interest. This system simplifies and streamlines the process of obtaining design protection in multiple countries.
Furthermore, Indian residents can also apply for protection under the European Union’s Community. Design system, which offers protection for designs in all member states of the EU. This system also allows for a single application, making it easier to obtain protection in multiple EU countries.
Overall, international protection allows Indian residents to expand the scope of their design protection. By securing protection in other countries and providing greater legal protection against infringement of their designs.
The exceptions of Design Protection include:
- Novelty: In order for a design to be eligible for protection, it must be new and original. This means that it cannot be an exact copy of an existing design or a design that is already known to the public.
- Functionality: Designs that are solely functional in nature, such as the shape of a tool or the configuration of a machine, are not eligible for protection. This is because the functionality of a product is considered to be more important than its aesthetic appearance.
- Prior Art: If a design has been published, exhibited or used in public before the date of application. It is not considered new and original and therefore not eligible for protection.
- Identical Designs: If two designs are identical or substantially similar, only the design that is filed first will be protected. This is based on the principle of first to file.
- Non-registrable Designs: Some designs are not eligible for registration, such as designs that are offensive, immoral or against public policy.
- Industrial application: Designs that are not intended for industrial application or for the production of articles in large quantities are not registrable
- Nature of Design: Designs that are related to flags, coats of arms, emblems, and official signs and hallmarks are not registrable.
- Traditional knowledge: Traditional knowledge or traditional cultural expressions are not registrable in India.
Overall, these exceptions serve to protect the public interest and ensure that designs that are not truly new and original do not receive protection. While also maintaining the balance between protecting the creators and the public interest.
By meeting these criteria and taking steps to protect your designs, designers can ensure that they receive the benefits of their hard work and creativity.
By understanding the legal requirements for design protection in India and taking steps to protect your designs. Designers can ensure that their hard work and creativity are protected. And also that they can receive the financial and branding benefits that come with it.
Design protection is an important aspect of any designer’s business. And it is essential to understand the legal requirements and take steps to protect your designs in order to reap its numerous benefits.