FAQs on Designs

What are the essential requirements for the registration of ‘design’ under the Designs Act, 2000?

(1) The design should be new or original, not previously published or used in any country before the date of application for registration. The novelty may reside in the application of a known shape or pattern to new subject matter. Practical example:

The known shape of "Kutub Minar" when applied to a cigarette holder the same is registrable. However, if the design for which application is made does not involve any real mental activity for conception, then registration may not be considered.

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How to get information on registration of design?

After registration of designs the most relevant view(s) of the article along with other bibliographic data will be available in the official gazette, which is being published on every Saturday. However, such provision cannot be implemented at this stage due to insufficient infrastructure.

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Can stamps, Labels, tokens, cards, be considered an article for the purpose of registration of Design?

No. Because once the alleged Design i.e., ornamentation is removed only a piece of paper, metal or like material remains and the article referred ceases to exist. Article must have its existence independent of the Designs applied to it. [Design with respect to label was held not registrable, by an Order on civil original case No. 9-D of 1963, Punjab, High Court]. So, the Design as applied to an article should be integral with the article itself.

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Whether it is possible to transfer the right of ownership?

Yes, it is possible to transfer the right through assignment, agreement, transmission with terms and condition in writing or by operation of law. However, certain restrictive conditions not being the subject matter of protection relating to registration of design should not be included in the terms and condition of the contract/agreement etc. An application in form-10, with a fee of Rs. 500/- in respect of one design and Rs.

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When does the Applicant for Registration of Design get the registration certificate?

When an application for registration of a Design is in order, it is accepted and registered and then a certificate of registration is issued to the applicant.

However, a separate request should be made to the Controller for obtaining a certified copy of the certificate for legal proceeding with requisite fee.

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What is meant by priority claim?

India is one of the countries party to the Paris Convention so the provisions for the right of priority are applicable. On the basis of a regular first application filed in one of the contracting state, the applicant may within the six months apply for protection in other contracting states, latter application will be regarded as if it had been filed on the same day as the first application.

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What is a Register of Designs?

The Register of Designs is a document maintained by The Patent Office, Kolkata as a statutory requirement. It contains the design number, class number, date of filing (in this country) and reciprocity date (if any), name and address of Proprietor and such other matters as would affect the validity of proprietorship of the design and it is open for public inspection on payment of prescribed fee & extract from register may also be obtained on request with the prescribed fee.

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How it is possible to restore the lapse design due to non-payment of extension fee within prescribed time?

A registration of design will cease to be effective on non-payment of extension fee for further term of five years if the same is not paid before the expiry of original period of 10 years. However, new provision has been incorporated in the Act so that lapsed designs may be restored provided the following conditions are satisfied:

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What is the effect of registration of design?

The registration of a design confers upon the registered proprietor ‘Copyright’ in the design for the period of registration. ‘Copyright’ means the exclusive right to apply a design to the article belonging to the class in which it is registered.

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Can the name, address of proprietor or address for service be altered in the register of design?

Name of the registered proprietor, address or address for service can be altered in the register of designs provided this alteration is not made by way of change of ownership through conveyance i.e. deed of assignment, transmission, licence agreement or by any operation of law, for which reference may be made to the answer against Q. 21. Application in form-22 with a fee of Rs. 200/- should be filed to the Controller of Designs with all necessary documents in support of the application as required.

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What is the duration of the registration of a design? Can it be extended?

The duration of the registration of a design is initially ten years from the date of registration, but in cases where claim to priority has been allowed the duration is ten years from the priority date.

This initial period of registration may be extended by further period of 5 years on an application made in Form-3 accompanied by a fee of Rs. 2,000/- to the Controller before the expiry of the said initial period of Copyright.

The proprietor of a design may make application for such extension even as soon as the design is registered.

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Are the registered designs open for public inspection?

Yes, registered designs are open for public inspection only after publication in the official gazette on payment of prescribed fee of Rs. 500/- on a request in Form-5.

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What is the date of registration?

The date of registration except in case of priority is the actual date of filing of the application. In case of registration of design with priority, the date of registration is the date of making an application in the reciprocal country.

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Can the application for registration of design be filed by the applicant himself only or through a professional person?

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 resident of India an agent residing in India has to be employed.

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How does a registration of design stop other people from exploiting?

Once a design is registered, it gives the legal right to bring an action against those persons (natural/legal entity) who infringe the design right, in the Court not lower than District Court in order to stop such exploitation and to claim any damage to which the registered proprietor is legally entitled. However, it may please be noted that if the design is not registered under the Designs Act, 2000 there will be no legal right to take any action against the infringer under the provisions of the Designs Act, 2000.

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How one can ascertain whether registration subsists in respect of any design?

For ascertaining whether registration subsists in respect of a design, a request should be made to the Patent Office, Kolkata. If the serial number of the registered design is known, the request should be made on Form 6, otherwise on Form 7, together with fee of Rs. 500/- or Rs. 1,000/- respectively. Each such request should be confined to information in respect of a single design.

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What are the important criteria for determining a "set of article"?

If a group of articles meets the following requirements then that group of articles may be regarded as a set of articles under the Designs Act, 2000:

  1. Ordinarily on sale or intended to be used together.
  2. All having common design even though articles are different (same class).
  3. Same general character.

Generally, an article having the same design and sold in different sizes is not considered as a set of articles. Practical example: "Tea set", "Pen set", "Knife set" etc.

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What is piracy of a Design?

Piracy of a design means the application of a design or its imitation to any article belonging to class of articles in which the design has been registered for the purpose of sale or importation of such articles without the written consent of the registered proprietor. Publishing such articles or exposing terms for sale with knowledge of the unauthorized application of the design to them also involves piracy of the design.

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What is an artistic work which are not subject matter of registration?

An artistic work as defined under Section 2(c) of the Copyright Act, 1957 is not a subject matter for registration which reads as follows:

"Artistic works" means: -

  1. A painting, a sculpture, a drawing (including a diagram, map, chart or plan) on engraving or a photograph, whether or not such work possesses artistic quality.
  2. An work of architecture and
  3. Any other work of artistic craftsmanship.

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What is the penalty for the piracy of a registered Design?

If anyone contravenes the copyright in a design he is liable for every offence to pay a sum not exceeding Rs. 25,000/- to the registered proprietor subject to a maximum of Rs. 50,000/- recoverable as contract debt in respect of any one design. The registered proprietor may bring a suit for the recovery of the damages for any such contravention and for injunction against repetition of the same. Total sum recoverable shall not exceed Rs. 50,000/-as contract debt as stated in Section 22(2)(a).

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What is meant by classification of goods mentioned in the Third Schedule?

In the third Schedule of Design Rules, 2001 the classification of goods has been mentioned. The classification is based on Locarno Agreement. Only one class number is to be mentioned in one particular application. It is mandatory under the Rules. This classification has been made on the basis of Articles on which the design is applied.

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Is marking of an article compulsory in the cases of article to which a registered design has been applied?

Yes, it would be always advantageous to the registered proprietors to mark the article so as to indicate the number of the registered design except in the case of Textile designs. Otherwise, the registered proprietor would not be entitled to claim damages from any infringer unless the registered proprietor establishes that the registered proprietor took all proper steps to ensure the marking of the article, or unless the registered proprietor show that the infringement took place after the person guilty thereof knew or had received notice of the existence of the copyright in the design.

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What is meant by Property mark as per the Indian Penal Code (Sec. 479)?

A mark used for denoting that movable property belongs to a particular person is called a property mark. It means that marking any movable property or goods, or any case, package or receptacle containing goods; or using any case, package or receptacle, with any mark thereon.

Practical example: The mark used by the Indian Railway on their goods may be termed as a Property Mark for the purpose of easy identification of the owner.

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What is meant by Intellectual Property?

Intellectual Property is the Property, which has been created by exercise of Intellectual Faculty. It is the result of persons Intellectual Activities. Thus Intellectual Property refers to creation of mind such as inventions, designs for industrial articles, literary, artistic work, symbols which are ultimately used in commerce. Intellectual Property rights allow the creators or owners to have the benefits from their works when these are exploited commercially. These rights are statutory rights governed in accordance with the provisions of corresponding legislations.

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